First, it’s important to understand how parenting time is determined. Parenting time is granted by the court based on an analysis of what will “enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child. The court, when issuing a parenting time order, may reserve a determination as to the future establishment or expansion of a parent’s parenting time. In that event, the best interest standard set forth in subdivision 5, paragraph (a), shall be applied to a subsequent motion to establish or expand parenting time.” M.S.A. § 518.175.
In other words, the best interest factors are applied to analyze the parent’s current and past relationship with the child. See M.S.A. § 518.175, subd. 1(a)(1-12). The court then weighs those factors in deciding how much time is necessary to give the child the best possible chance to prosper. In some cases, the court may decide that more information is needed or specific conditions must be met before awarding parenting time, or before increasing existing parenting time. For example, if a parent has issues with drug use, it could just mean they need to complete a treatment program.
What Is A Parenting Time Restriction?
A parenting time restriction is anything that would substantially limit or have a negative effect on a parent’s ability to maintain the existing parent-child relationship. Restrictions on parenting time may be made before any parenting time is court ordered. This may occur if the court finds that parenting time with a parent “is likely to endanger the child’s physical or emotional health or impair the child’s emotional development, the court shall restrict parenting time with that parent as to time, place, duration, or supervision and may deny parenting time entirely, as the circumstances warrant. . . .” M.S.A. § 518.175, subd 1(b).
Other restrictions occur after parenting time is established by a court order through a modification action. A modification of parenting time just means that one party is asking that the current court ordered parenting plan be changed to restrict (reduce) the other parent’s parenting time. The general categories that warrant a restriction are found under M.S.A. § 518.175, subd. 5(c)(1) & (2) and M.S.A. § 631.52. For purposes of this blog, we will focus on M.S.A. § 518.175, subd. 5(c), which states that a restriction is proper with a finding that “(1) parenting time is likely to endanger the child’s physical or emotional health or impair the childs’ emotional development; or (2) the parent has chronically and unreasonably failed to comply with court-ordered parenting time.” The court has varying approaches on determining whether something is a restriction, based on the type of modification sought. We will explore two types of restrictions below and how they are analyzed.
Time restrictions are the most common form of parenting time restriction. The challenge lies in determining whether the reduction in time is actually a restriction. This is relevant particularly because you do not need to prove the standards set forth for endangerment or interference if the reduction request is insubstantial. A change in parenting time that reduces the amount of time a parent has with a child is not necessarily a restriction of parenting time. Danielson v. Danielson, 393 N.W.2d 405, 407 (Minn. App. 1986). A restriction occurs when a change to parenting time is “substantial,” which is assessed through looking at the “reasons for the change and the amount of reduction of the parenting-time rights.” Matson v. Matson, 638 N.W.2d 462, 468 (Minn. App. 2002). The court has determined prior that a substantial change existed when one parent’s time slowly decreased from fourteen (14) weeks per year to five and a half (5½) weeks per year. Clark v. Clark, 346 N.W.2d 383, 385-86 (Minn. App. 1984), review denied (Minn. June 12, 1984). In practice, a request for reduction will not be considered “substantial,” so long as the reduction request is reasonable/minimal. If the request is reasonable/minimal, then you are making an insubstantial request and need not prove that the status quo will harm the child or that interference existed. However, If you are seeking a “substantial” reduction of parenting time, then the court will have already determined that the time frame is “substantial.” After the court’s determination, you must either prove that the status quo is a danger to the child, or a result of chronic interference with a parenting time schedule. Successfully proving either most likely means that your request will be granted.
Supervised visitation is another restriction on parenting time. In order to obtain this you must meet a different standard than the one previously discussed. It’s helpful to think of this as a two prong analysis: (1) describe the danger that exists to the child, or the interference with the plan; and (2) provide persuasive evidence to prove that the danger or interference exists by a preponderance of the evidence. For example, in Al-Zouhayli the parenting time granted by a temporary order was supervised, and the mother was simply asking that supervised visitation continue; but the court found that supervised visitation has a “harmful effect on the parent-child relationship.” Al-Zouhayli v. Al-Zouhayli, 486 N.W.2d 13 (Minn. App. 1992). In this particular case the “harmful effect on the parent-child relationship” was weighed against the “risk of abduction.” Id. The court weighed the two and found that the damage supervised parenting time would have on the father’s relationship with his child outweighed the risk of the father potentially abducting the child. This was particularly found because the court did not find the mother’s evidence persuasive, based partly on the fact that the statements the father made were remote, and that the mother was speculating as to what he “might do.” Id. At 12-13.
In summation, the threat of harm must be based on “persuasive evidence” that tends to show the harm or interference is probable, and not just based on what the individual sought to be restricted “might do.” That persuasive evidence must then be greater than the harmful effect of supervised parenting time on a parent-child relationship.
Parenting time issues and restrictions on parenting time can be extremely complicated. It is important to consult an attorney to ensure that parenting time issues are properly navigated. If you need legal assistance, contact SW&L at 701-297-2890 or email us at: email@example.com.
The information contained in this blog and on this website is for informational purposes only. Do not rely on information on this website as legal advice.