In Minnesota, a custody order must establish a child's physical custody and primary residence. But nowhere in Minnesota's family law statutes is the term "primary residence" defined. The primary residence definition is important because under Minnesota Statute Section 518.175, subd. 5(a), a court shall modify a parenting time order if it would serve the best interests of the child only if the modification would not change the child's primary residence.
On October 20, 2014, the Minnesota Court of Appeals, in a published decision, defined the term "primary residence" to be "the principle dwelling or place where the child lives. So, primary residence appears to be where the child spends more than half of the year. This seems simple enough and given that primary residence is a fact determination based on where the child actually lives or the child's "principle dwelling," there is very little need for parties to argue over or stipulate to what is considered to be the child's primary residence. For example, it appears that if a child is with one parent 35% of the time, that place would not be the child's primary residence even if the parties stipulated to the contrary.
In some regards, this decision clarifies the law. But effective on August 1, 2014, Minnesota changed a second part of the "best interests" modification standard in a way that now appears to be partially unworkable given the definition of primary residence. In section 518.175, subd. 5(b) "a modification of parenting time which increases a parent's percentage of parenting time to an amount that is between 45.1% to 54.9% parenting time is not a restriction of the other parent's parenting time." This is important because the Court may not restrict parenting time of a parent, without finding either endangerment to the child or that a parent has chronically and unreasonably failed to comply with court-ordered parenting time.
This means that in order for the "best interests" standard to apply, the Court: (1) must not restrict parenting time (i.e., increase to over 54.9% of the time); and (2) must also not change the child's primary residence. But if the child's primary residence means where the child spends more than 50% of the parenting time, then there would be no way to modify parenting time for the non-primary-residential-custodian (i.e., the parent who has less than 50% of the parenting time) to over 50% of the parenting time without changing the child's primary residence. In other words, case law appears to render part of the statutory amendments effective August 1, 2014, ineffective or at least impossible to implement without directly contradicting another statutory requirement.
Modification of custody or parenting time is complicated and extremely fact specific. Case law and statues sometimes conflict. It is important to have a knowledgeable attorney advising you on the various issues which must be addressed and how those issues apply to your particular facts and circumstances.
Andrew M. Tatge is a partner and chair of the Family Law and Divorce Practice Group at Gislason & Hunter LLP (www.gislason.com). He regularly represents farmers, business owners, professionals, and other high income and high net worth individuals (or their spouses) in divorce and related actions. He also writes and speaks regularly on divorce issues. Andrew can be reached at firstname.lastname@example.org or (507) 387-1115. This information is general in nature and should not be construed as tax or legal advice.