Minnesota's courts have long held a preference against divorced parents sharing physical custody of their children.
In 1945, Justice Leroy Matson said children need stability, and it's difficult to achieve stability when "a young child is shunted back and forth between homes." Minnesota's courts continue to cite Matson's words in child custody cases today.
The legislation's sponsor, Sen. Tom Neuville, R-Northfield, says for too long, the courts have viewed stability as a child living solely with its mother, and visiting the father every other weekend. As a result, he says the courts have sent the father a message that he is less of a parent.
"There's been a cultural expectation that mothers are always best suited. Until we change some of those presumptions, I think a lot of kids are missing out on relationships with their father," Neuville says.
“There's been a cultural expectation that mothers are always best suited. Until we change some of those presumptions, I think a lot of kids are missing out on relationships with their father.”Sen. Tom Neuville, R-Northfield
The state and the courts define child custody in two ways -- legally and physically. Parents who have legal custody make the big decisions in their children's lives -- education, medical care and religion for example.
Neuville's bill deals with physical custody. It would not require judges to award joint physical custody in every case, but they would have to start with that premise.
University of Minnesota law professor Brian Bix, who teaches family law, says the bill does include exceptions.
"The proposed legislation here is very careful to say that something like domestic abuse or prior abuse of a child is a very good reason not to have a setup like this. And there may be other reasons," says Bix. "But on the whole, unless a judge is willing to put on paper and be reviewed by an appellate court, the judge must come up with some form of joint physical custody."
Judges look at 13 factors in deciding what's best for the child. Those factors include the reasonable preference of where the child wants to live; the closeness of the child to each parent; and the ability of each parent to love the child.
Minneapolis Attorney Pamela Waggoner, who specializes in family law, says the courts should decide where a child lives based on those factors -- period -- not a presumption of any kind.
Waggoner acknowledges that divorced fathers often have an uphill battle in securing physical custody of their children, but that's based on history.
"The recognition of parentage has always given mom sole legal and sole physical custody until dad comes forward. And the reason for that is simply because historically, an unmarried dad didn't want to support the child and an unmarried dad frequently disappeared," Waggoner says.
Waggoner says now, that's beginning to change. Still, divorced fathers must prove they have an interest in parenting a child -- and many are. She represents them.
Barbara Aaby says that when she started her law practice 14 years ago, divorced fathers expected they would only see their children on alternating weekends. She's says that's now the exception rather than the rule.
Aaby heads the child custody section for the American Bar Association. She says presuming that both parents will share physical custody of a child is in the best interests of a child.
"Overwhelmingly, when dads come to retain me, their expectation is that they be involved to the point that they have 50/50 parenting time and 50/50 legal custody," says Aaby. "That doesn't mean it's right every time, but it does suggest that something fundamentally has shifted in how men regard their roles," says Aaby.
Under Neuville's bill, there is no set division of parenting time. In fact, the bill says joint physical custody need not be 50/50 or a nearly equal division of time.