Modifying parenting time

A new case, Boland v. Boland, explains the framework for a court to evaluate a motion to modify custody. A party seeking to modify custody must support their motion with an affidavit stating the relevant facts supporting the requested modification. The district court must accept the facts in the moving party's affidavit as true, disregard contrary allegations in the other party's affidavits, and consider the other party's allegations only as explanations or contextualizations. Next, the district court must determine if the moving party has made a prima facie (evident at first sight) showing for modification. If there is a prima facie showing, then an evidentiary hearing will occur.

What does this mean? It means that the party wanting to change custody must show in their affidavits that there are legal grounds for modifying the custody. There are four statutory factors that the moving party must establish before the court will find a prima facie showing:

1. A change in circumstances;
2. The modification is necessary for the child's best interests;
3. That the child's present environment endangers his/her physical or emotional health, or emotional development; and
4. That the harm from changing custody outweighs the advantage of the change.

These four factors can be difficult to prove but it all depends on the facts of the case.

Child Support Modification

Pursuant to Minn. Stat. 518A.39, subd. 2, child support may be modified if there has been a substantial change in the gross income of either the obligor or obligee. Since 2007, child support is based upon the gross incomes of both the mother and father (income shares method). Previously child support was a percentage of the obligor's net income. The first time child support is modified using the income shares method, the new child support amount may cause a financial hardship on either the obligor or obligee. As a result, the legislators included 518A.39, subd. 2(k) which states "On the first modification under the income shares method of calculation, the modification of basic support may be limited if the amount of the full variance would create hardship for either the obligor or the obligee." With proper preparation and evidence, an obligor or obligee may successfully limit the modification of child support using this statute.

Parenting time and child support

During consultations, people ask me if parenting time affects child support. The answer is yes it can but it depends. Child support can be reduced depending upon the amount of court ordered parenting time. For instance, if there is no court ordered parenting time, then child support will not be reduced even if the parent exercises parenting time on a regular basis. People should be aware too that if a parent has court ordered parenting time but does not exercise their parenting time, that parent can still get a reduction in child support based upon the percent of court ordered parenting time. This was recently addressed by the Court of Appeals in an unpublished opinion, Hesse v. Hesse, A08-2255 (Minn. App. 12/1/2009) (Minn. Appl. 2009). In this case, the father had court ordered parenting time of more than 45.1%; therefore, he met the requirement for a reduction in his child support obligation. The mother argued that since the father did not exercise his two weeks of vacation, his parenting time was less than 45.1%. Minn. Stat. 518A.36, subd. 1(a) states that the "percentage of parenting time means the percentage of time a child is scheduled to spend with the parent during a calendar year according to a court order." As a result, the child support was modified based on the court ordered percentage of parenting time and not the amount of actual parenting time that the father exercised during a calendar year.