Minnesota law uses the best interests of the child factors set out in Minnesota Statute Section 518.17 to decide custody when    parents disagree.   The implicit notion in the Minnesota Statute is that any custody dispute is child focused and not focused on the individual parents.   Minnesota requires that other factors are analyzed when joint custody of the children is at issue.  What this means,  practically,  is that Minnesota assumes that joint custody is  not in the best interests of the children.  The Minnesota Statute and the best interest factors play out, for the most part, by having one parent as the custodial parent and awarding the non-custodial parent visitation or what is now called “parenting time.”  While the Minnesota Statute is gender neutral, the reality is that in most custody disputes the Mother is granted sole physical custody.  The question then becomes is there a bias in favor of Mothers and against Fathers?  I don’t think that there is any bias, but rather there are out-dated beliefs about parents and parenting that influence us whether we know it or not.  In my opinion we have to look at the hidden underlying belief system held for more than a century about child rearing that continues to promote the one-parent analysis that tends to favor Mothers.

What underlying beliefs  continue to sustain the one parent analysis?

1. Mothers are better at care giving because they are emotionally accessible and nurture a child more than a Father.

2. Fathers  are emotionally undemonstrative and do not nurture the children.

3. Fathers do not adequately take part in child rearing because they abdicate that role to Mothers; and, Fathers are working outside the home for most of the day or Fathers work overtime or two jobs.  ( I have always argued that Fathers should not be penalized in custody matters because they worked hard and long hours to benefit the family.)

4 Mothers are always around to take care of the children because they don’t work as much or at all.

5. Mothers change diapers, give baths, feed and dress the children and, generally, are the primary care-takers of the children.

6. Fathers do not take part at the same level in care-taking the children and, it follows, that the children do not look to Fathers for comfort or care-taking as they do Mothers.

The one-parent sole custodian approach is based upon the foregoing out-dated beliefs that tend to promote the idea that Mothers are the better custodial parents.

These beliefs are not  articulated, but, nonetheless,  tend to drive the one-parent analysis with Mothers as the sole custodians.

How Do Most  21st Century Families Parent the Children?

1. Both parents are involved in the birth of  their children. Fathers are usually present in the delivery room.

2. Both Mother and Father get up at night to change diapers, rock the new baby and feed the baby, if not breast-fed.

3. Both parents usually have full-time jobs.  Mother may have maternity leave, but she will return to work.

4. Almost all children today attend some form of daycare or pre-school early on in their lives beginning in infancy when Mother returns to work from maternity leave.  This means that there is a third-party non-relational care-taking arrangement for the children.  Children will spend almost 8 hours a day five days a week in the care of the third-party.  How then can one parent be named the “primary care-taker” under these circumstances?

5. In most families,  both parents are attentive to the children’s needs. Both parents read stories and tuck the children in at night. Both parents bath, dress the children, prepare meals, and change diapers. Both parents engage in discipline. Both parents attend school plays and conferences.  Both parents may run children to and from daycare, pre-school, school, summer-time activities and medical appointments.  The parent who has the most employment flexibility may do more of the running, but his or her availability is a function of employment and not gender.

6. The parents have a division of labor in child rearing tasks, but both are equally involved in parenting

What sort of results would we have in custody arrangements if we considered the 21st century realities of families and  joint parenting?  I suspect that we would see more joint custody arrangements where both parents remain equally involved in care-taking.

We can all agree that it is important for  children of a divorce or a break-up to have consistency in parenting–that is a given.    Rather than require that the children’s lives change by seeing one parent less often, however, why not require that the parents arrange their respective lives or schedules or living situations  to accommodate the children’s needs that both parents continue parenting?

What is the Status of the Sole Custody Presumption vs. the Joint Custody Presumption in Minnesota?

The Minnesota legislature is reviewing the sole custody presumption vs. the joint custody presumption issue.  There is a bill pending entitled the “Children’s Equal and Shared Parenting Act”, House File 322,  that would allocate at least a 45 % minimum parenting time share to both parents.  This means that from the start of any divorce or break-up the law would presume that both parents are equally capable of child rearing and all that child rearing involves.  Starting from the joint custody presumption that both parents should be equally involved with child rearing defeats all of those old beliefs listed above that tend to drive the one-parent sole custodian approach.

There must be room, however, in any joint custody presumption for exceptions to equal parenting; for example, where domestic violence is present in a family or  where the child is conceived and the parents have no historical relationship as in the “one-night stand.”   Where a fact situation may dictate against the joint custody presumption, the parent seeking sole custody must still have the opportunity  to show that the joint custody presumption is not applicable to his or her situation.

In sum, the joint custody presumption that both parents are necessary care-givers and that it is in the best interests of the children to continue to be parented by both Mother and Father should be the rule and not the exception.

The Children’s Equal and Shared Parenting Act has its opposition.  The  Family Law Section of the Minnesota State Bar Association is opposed to the present bill.  Other professionals in family law such as custody evaluators, therapists, and advocates for domestic violence victims oppose the bill as well.

Where people of good will disagree, however, ongoing discussions, shared opinions,  and an analysis of the presenting issues only benefits the legal bill writing process.

What’s your opinion?

About Kate Willmore, Esq.

Kate Willmore, Saint Cloud, Minnesota, divorce, custody and family attorney brings over 25 years experience to every client's legal matter. *** Licensed in Minnesota and in California


  1. Dariella Rodriguez Reply March 9, 2012 at 11:53 pm

    I completely agree with you on the 21st century. Things have changed. I think that in most part parents that are given the oppurtunity to be involved with their children, do. People have to remember that without each other they wouldn’t even have the child/children involved. They have to put their feelings aside and just think about the child/children. Which should be their best interest. This is one topic that I would love to be involved in but have not heard of much. Equal parenting with the other things that come along with it should be one of the top priorities.


    • I think we are in the minority. Most of the legal profession in MN is dead set against this presumption. I agree that the presumption is not applicable in some specific cases; e.g., domestic violence and where children are very young. Genrally, I support the joint presumption. Germany has an interesting approach to this situation. Parents are joint custodians upon the filing of a joint delcaration stating so; in the event they decide otherwise, for whatever reason, then they simply file another declaration. The assumption is, however, that both parents should be equally involved in parenting.

      If you are a MN resident, then you can let your respresentive in St. Paul know your opinion. Thank you for commenting.


      • Commentators opposed to shared parenting and overnights for infants and toddlers post-divorce have been relying on misleading interpretations of very flawed research to argue that young children need to spend most of their time and every night in the care of one “primary” parent.

        In order to clarify where social science stands on these issues, a February 2014 study by Dr. Richard Warshak, Clinical Professor of Psychiatry at the University of Texas Southwestern Medical Centre published in the prestigious American Psychological Association’s peer-review journal, Psychology, Public Policy, and Law, with the endorsement of 110 of the world’s top authorities from 15 countries in attachment, early child development, and divorce, concludes that in normal circumstances, overnights and ‘shared parenting should be the norm for parenting plans for children of all ages, including very young children.’

        The consensus report ends with a number of recommendations. Of particular note:

        ‘We have no basis for rank ordering parents as primary or secondary in their importance to child development.” (p. 50)

        “We recognize that many factors such as cultural norms and political considerations affect the type of custody policy that society deems as desirable. To the extent that policy and custody decisions seek to express scientific knowledge about child development, the analyses in this article should receive significant weight by legislators and decision makers.” (p. 59)

        “1. Just as we encourage parents in intact families to share care of their children, we believe that the social science evidence on the development of healthy parent– child relationships, and the long-term benefits of healthy parent–child relationships, supports the view that shared parenting should be the norm for parenting plans for children of all ages, including very young children.“ (p. 59)

        “3. In general the results of the studies reviewed in this document are favorable to parenting plans that more evenly balance young children’s time between two homes. …Thus, to maximize children’s chances of having a good and secure relationship with each parent, we encourage both parents to maximize the time they spend with their children.” (p. 59)

        “4. Research on children’s overnights with fathers favors allowing children under four to be cared for at night by each parent rather than spending every night in the same home. ” (p. 59)

        “6. There is no evidence to support postponing the introduction of regular and frequent involvement, including overnights, of both parents with their babies and toddlers.” (p.60)

        7. Our recommendations apply in normal circumstances, for most children with most parents. The existence of parents with major deficits in how they care for their children, such as parents who neglect or abuse their children, and those from whom children would need protection and distance even in intact families, should not dictate policy for the majority of children being raised by parents who live apart from each other. Also, our recommendations apply to children who have relationships with both parents. If a child has a relationship with one parent and no prior relationship with the other parent, or a peripheral, at best, relationship, different plans will serve the goal of building the relationship versus strengthening and maintaining an existing relationship. (p. 60)


        Warshak RA (2014) Social Science and Parenting Plans for Young Children: A Consensus Report. Psychology, Public Policy, and Law, Vol. 20, No. 1, 46–67


      • I think we are stuck in the fifties. I can appreciate instances where a “one-night” stand or little contact between parents may impact a joint custody presumption in a negative manner. Overall, however, it seems both parents should be equally involved as much as possible under the facts and circumstances of the case. Thanks for the article. I will use it.


  2. The majority of people who have been surveyed on the issue of custody believe that children should live equal time with both parents after divorce. In a 2004 nonbinding ballot election in Massachusetts, 85% of the voters (530,000 people) said that children should live with each parent equally after divorce.

    Furthermore, there is no research suggesting that children for the most part like or thrive on the fall-back ‘80/20’ arrangement that remains so commonplace. Studies in Australia, New Zealand and the U.S that asked adolescents and adults their views on living arrangements after parents’ divorce all found that the majority endorsed equal time with both of their parents. An Arizona study of 344 men and 485 women who were undergraduates and whose parents had divorced ten years earlier found that 70% chose equal amounts of time with each parent as the ideal scenario in response to a vignette. The authors pointed out that this was not an idealistic position, as 93% of those who had experienced equal time with parents endorsed the living arrangement

    We cannot ignore this unwavering clear message from young people that they actually and ideally prefer substantive amounts of time with both parents. It is also important to note that these young people are the parents of the future many of whom will marry and separate. If attitudes are any indication of behaviour then they will not be adhering to the present common pattern of every other weekend and half the holidays with fathers.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: