Monday, May 24, 2010

"Integration" Standard Inapplicable in Motions to Modify Joint Physical Custody

Occasionally judges hear motions for modification of joint physical custody in which the argument by the moving party is that the child has been living with them substantially more than 50% of the time, therefore they want sole physical custody.  Frequently in these cases it appears that one parent never had any intention of complying with the "equal residency" provisions of the divorce decree and agreed to it simply to pay less child support.  Nevertheless, the integration standard of Minn. Stat. 518.18 (d)(iii) does not apply to such cases as there cannot be integration when the parties already have joint physical custody.  Consider a footnote by Judge James Swenson in an order in a Hennepin County District Court case, Snetsinger, court file 24-FA-248938:
        The integration standard set forth in (Minn. Stat. 518.18) (d)(iii) does not apply because joint physical custody assumes that the children will be integrated into both households.  "This integration of a child into the homes and community of both parents is the necessary outcome and goal of a joint custody arrangement..." In re the Marriage of Johnson, 777 P.2d 305, 307 (Mont. 1989)  The Court understands that Johnson does not represent Minnesota precedent, but Montana is also a uniform act state and the Montana court's analysis is persuasive.

  The moving party in such cases must prove either "endangerment" of the child or interference with joint physical custody.

1 comment:

  1. I respectfully disagree and point the court to the case of Johnson vs. Johnson, A10-520, an unpublished case filed May 23, 2011; to the case of Ostrander vs. Ostrander, unpublished case filed July 18, 2006; and to the statute, which contains no specific exceptions to the application of the standards.

    Further, in that regard, practioners may want to consider the case of Elgard vs. Dudley, 471 N.W.2d 681 (Minn. App. 1991) which ruled that 518.18(d) did not apply to any joint physical custody cases, but instead determined that all joint custody modification cases should be determined by the "best interest" standard. The ruling was rejected, and the statute was held to apply to joint physical custody cases as well as sole physical custody cases. Again, if an exception to the application of the statute was intended, it should be in the statute.

    I do not have the last case cite, but will attempt to post it later. It should not be hard to locate for anyone looking, as clearly 518.18 (d) applies to modification of joint physical custody cases.

    I would love some Minnesota case law or statutory law supporting the 3rd sentence of this blog above. I am willing to admit error.

    ReplyDelete