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Parenting Time (a/k/a Visitation) in Minnesota
(provided by Eric C. Nelson, Esq.)
I. The Right to Parenting Time (Visitation).
The general rule is that parenting time (visitation) is mandatory. The pertinent statute provides:
"In all proceedings for dissolution or legal separation, subsequent to the commencement of the proceeding and continuing thereafter during the minority of the child, the court shall, upon the request of either parent, grant such rights of parenting time on behalf of the child and noncustodial parent as will enable the child and the noncustodial parent to maintain a child to parent relationship that will be in the best interests of the child. . . ."
Parenting time may by ordered to be supervised or otherwise restricted, but only be restricted after a hearing, and upon findings that visitation is likely to endanger the child's physical or emotional health or impair the child's emotional development.(3) As the appellate courts have repeatedly recognized:
We believe our prior cases concerned with visitation by a noncustodial parent reflect the policy embodied in Minn.St. 518.175 that visitation is to be regarded as a parental right essential to the continuance and maintenance of a child-to-parent relationship between the child and noncustodial parent, and that a denial of this right shall be based on persuasive evidence that visitation will not serve the best interest of the child.(4)A Court's Order denying visitation must be based on particularized findings.(5) Likewise, a Court's Order restricting visitation requires particularized findings on the reasons for the restriction, and findings that the restrictions serve the children's best interests.(6)
In instructive case is J.A.S. v. R.J.S., in which the trial court suspended a father's visitation rights indefinitely until there was "definitive proof" that the child could "accept visitation" without trauma, after allegations were made that the father had sexually abused his former wife's daughter from a prior marriage.(7) The Court of Appeals reversed, because the trial court had made no specific findings of abuse, and no findings as to what consideration, if any, was given to provisions for rehabilitation of the father-daughter relationship through counseling, treatment, or supervised visitation.
II. Typical Parenting Time Schedules.
A. Both Parties in Minnesota.
Generally speaking, for parents who live in the same vicinity, a bare minimum parenting time schedule for the non-custodial parent will be every other weekend and one non-overnight evening per week, with alternating holidays and two weeks of summer.
Note: this is only a bare minimum! I'm amazed at how often people settle for this, even though they want more parenting time. Generally speaking, there is no reason to settle for this minimal schedule, because the Court will award you at least that much anyway. So if this is all that is on the table, you have nothing to lose by holding out for more parenting time.
B. One Party Out-of-State.
Except for those so wealthy that airfare is not a consideration, a parenting time schedule for an out-of-state parent will not include every other weekend. Typically I see something along the following lines:
- Fall: Every Thanksgiving Break or Teacher's Convention weekend, alternating.
- Winter: Half of every Christmas Break.
- Spring: Half of every Spring Break.
- Summer: any where between four weeks and the entire summer.
Parenting time (visitation) time must be modified whenever it would be in the children's best interest to do so.(9) Insubstantial modifications of parenting time do not require a full evidentiary hearing.(10) Motions for "substantial" modification of parenting time cannot be granted without a full evidentiary hearing.(11) If the proposed modification of parenting time would be tantamount to a modification of custody, then the procedures and prerequisites for a custody modification motion apply.(12)
* THE INFORMATION IN THIS ARTICLE IS NOT ADVICE FOR YOUR PARTICULAR CASE. FOR GUIDANCE ON YOUR SITUATION, CONSULT WITH ERIC C. NELSON, ATTORNEY. ALSO, THIS INFORMATION APPLIES ONLY TO MINNESOTA LAW, AND NOT TO THE LAW OF ANY OTHER STATE OR COUNTRY.
(1) Minnesota Statute section 518.175, Subdivision 1(a).
(2) Minnesota Statute section 518.175, Subdivision 1(a) (emphasis added).
(3) Id.
(4) Young v. Young, 370 N.W.2d 57, 65 (Minn.Ct.App. 1985) (reversing trial court's denial of visitation) [citing Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978) (emphasis added)].
(5) See Matter of Welfare of N.W., 405 N.W.2d 512 (Minn.Ct.App. 1987).
(6) J.M.G. v. J.C.G., 431 N.W.2d 592 (Minn.Ct.App. 1988) (reversing order requiring supervised visitation, where no findings were made that the children's best interests would be served by supervised visitation, and allegations of sexual abuse by father against children could not be substantiated by authorities).
(7) J.A.S. v. R.J.S., 524 N.W.2d 24 (Minn.Ct.App. 1994).
(8) Id. at 27.
(9) Minnesota Statute section 518.175, Subdivision 5.
(10) Braith v. Fischer, 632 N.W.2d 716 (Minn.Ct.App. 2001).
(11) Matson v. Matson, 638 N.W.2d 462 (Minn.Ct.App. 2002).
(12) Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471 (Minn.Ct.App. 1981).
Information provided by:
Eric C. Nelson, Esq. located at
http://www.divorcesource.com/MN/DS/nelson.html
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