Report on the Impact of a Rebuttable Presumption of Joint Physical Custody

In 2008, the Minnesota Legislature put together a Study Group to consider the impact that a presumption of joint physical custody would have in Minnesota. The Study Group was provided with the proposed legislation that, if passed, would create a rebuttable presumption that joint physical custody is in the best interests of the child. Currently, Minnesota courts review specific situations of individual children to determine their best interests in regards to physical custody. Under a rebuttable presumption, Minnesota courts would assume that structuring routine daily care, control, and residence between both parents is in the best interests of all children. The burden of seeking a best interests determination would shift to an objecting parent who would have to prove that joint physical custody is not in the child’s best interest.

The Study Group identified potential problems and benefits of a joint physical custody presumption. Some of the potential benefits include: Encouraging children’s ongoing relationships with both parents; limitation of court discretion; enhanced predictability; potential decrease in litigation; might enhance children’s relationships with extended family members; might enhance parents’ rights; and possibility of increased efficiency and decreased costs. Some of the Study Groups concerns regarding such a presumption include: Limitation of courts’ ability to consider the needs of individual children; detriment to children continuously exposed to high levels of parental conflict; possibility of heightening conflict between parents who are unable to effectively co-parent; creation of financial and procedural challenges for low income and unrepresented parents who would carry the burden of proof if they object to joint physical custody; and impracticality for some families such as those with parents living far apart, whose children are very young, and/or parents who are not married and have never had an ongoing relationship with each other.

A lack of Minnesota data made it difficult for the Study Group to assess issues and generate helpful responses and, according to the Study Group, a joint physical custody presumption may not be an appropriate solution for current custody problems.

Minnesota Joint Physical Child Custody Presumption Study Group Report, January 14, 2009, http://www.mncourts.gov/Documents/0/Public/NewsPostings/MN_Joint_Physical_Child_Custody_Presumption_Study_Group_Report_2009.pdf