Parenting Time (a/k/a Visitation)
- by Eric C. Nelson, Attorney

I. The Right to Parenting Time (Visitation).

The general rule is that parenting time (visitation) is
mandatory. [1] The pertinent statute provides:

“In all proceedings for dissolution or legal separation, subsequent to the commencement of the proceeding and continuing thereafter during the minority of the child, the court shall, upon the request of either parent, grant such rights of parenting time on behalf of the child and noncustodial parent as will enable the child and the noncustodial parent to maintain a child to parent relationship that will be in the best interests of the child. . . .” [2]

Parenting time may by ordered to be supervised or otherwise restricted, but only be restricted after a hearing, and upon findings that visitation is likely to endanger the child’s physical or emotional health or impair the child’s emotional development. [3] As the appellate courts have repeatedly recognized:

We believe our prior cases concerned with visitation by a noncustodial parent reflect the policy embodied in Minn.St. 518.175 that visitation is to be regarded as a parental right essential to the continuance and maintenance of a child-to-parent relationship between the child and noncustodial parent, and that a denial of this right shall be based on persuasive evidence that visitation will not serve the best interest of the child. [4]

A Court’s Order denying visitation must be based on particularized findings. [5] Likewise, a Court’s Order restricting visitation requires particularized findings on the reasons for the restriction, and findings that the restrictions serve the children’s best interests. [6]

In instructive case is
J.A.S. v. R.J.S., in which the trial court suspended a father’s visitation rights indefinitely until there was “definitive proof” that the child could “accept visitation” without trauma, after allegations were made that the father had sexually abused his former wife’s daughter from a prior marriage. [7] The Court of Appeals reversed, because the trial court had made no specific findings of abuse, and no findings as to what consideration, if any, was given to provisions for rehabilitation of the father-daughter relationship through counseling, treatment, or supervised visitation. [8]

II. Typical Parenting Time Schedules.

While there is wide range of possible parenting time schedules, below are some of the most common parenting time schedules in Minnesota. Note that the propriety of any particular schedule will vary depending on the circumstances of your case, such as the ages of the children, the parents’ work schedules, and the distance between the parents’ homes.

    This schedule is just what it sounds like. Each parent has the children for one full week, every other week. Typically the transition will occur from school, but not necessarily. One of the advantages of this schedule is that it minimizes transitions. The disadvantage is that the children go a full week without seeing the other parent.

      With this schedule, each parent has a full week every other week, but the children will have a non-overnight with the off-duty parent on a midweek day such as Wednesday. This way, the children don’t have to wait a full week before seeing the other parent.

        Each parent has the children from Friday after school till Monday at the start of school, every other weekend. One parent has every Monday and Tuesday overnight. The other parent has every Wednesday and Thursday overnight. Here is how this looks on a two-week cycle:
        With this schedule, there are four transitions every two weeks, which can be done to and from school to minimize contact between the parents if desired. The children never go more than five days without seeing the other parent.

          Each parent has the children from Friday after school till Monday at the start of school, every other weekend. Each parent has the children on Monday and Tuesday overnight one week, and on Wednesday and Thursday overnight the next week. Here is how this looks on a two-week cycle:
          With the 2-2-3 schedule, there are six transitions every two weeks, which can be done to and from school to minimize contact between the parents if desired. The children never go more than three days without seeing the other parent. Generally speaking, this kind of schedule is more suitable for young children, for whom it can be more difficult to wait for too many days before seeing the other parent, while teenagers might find this many transitions to be logistically burdensome.

            Each parent has the children from Friday after school till Monday at the start of school, every other weekend. The non-primary parent has every Tuesday overnight and every other Thursday overnight, such that his or her off-weekend is sandwiched by a Thursday and a Tuesday overnight. Here is how this looks in a two-week cycle. (In this illustration I am showing Dad having primary residence, but obviously it could work either way):
            With this schedule, the primary parent has the children for 8 out of 14 overnights, while the other parent has them for 6 out of 14 overnights. The children won’t go more than 4 days without seeing the other parent. There are eight transitions in a two-week cycle.

              Each parent has the children from Friday after school till Monday at the start of school, every other weekend. The non-primary parent has the children for one midweek overnight every week, on the Thursday and Tuesday sandwiching his or her off-weekend. Here is how this looks in a two-week cycle. (In this illustration I am showing Mom having primary residence, but obviously it could work either way):
              With this schedule, the primary parent has the children for 9 out of 14 overnights, while the other parent has them for 5 out of 14 overnights. The children won’t go more than 4 days without seeing the other parent. There are six transitions in a two-week cycle.

                Each parent has the children from Friday after school till Sunday evening. The non-primary parent has the children for one midweek overnight every week, on the Thursday and Tuesday sandwiching his or her off-weekend. Here is how this looks in a two-week cycle. (In this illustration I am showing Dad having primary residence, but obviously it could work either way):
                With this schedule, the primary parent has the children for 10 out of 14 overnights, while the other parent has them for 4 out of 14 overnights. The children won’t go more than 4 days without seeing the other parent. There are six transitions in a two-week cycle.

                Note: I call this “the Bare Minimum” because generally speaking, the Court will award a parent at least 4 out of 14 overnights. Per Minnesota law, there is a rebuttable presumption that a parent is entitled to receive at least 25% of the parenting time. [9] Three out of 14 overnights would only afford a party 21% parenting time. Therefore, if someone is offering only 4 out of 14 overnights as their settlement proposal, this is not a compromise, and one has nothing to lose by holding out for more. I am continually amazed at how often a parent will settle for a mere 4 out of 14 overnights (and then regret it and approach me later about having it modified).

                  In cases where parties live more than about 45-60 minutes apart, mid-week parenting time is not child-friendly, because of the commuting burden. In this scenario, a reasonable schedule would be for the non-primary parent to have the children every weekend from Friday to Sunday evening (29% parenting time), or otherwise to have them every three out of four or every two out of three weekends, with more time during the summer and school breaks.

                    Except for those so wealthy that airfare is not a consideration, a parenting time schedule for an out-of-state parent will not include frequent weekends. Typically I see something along the following lines:

                    Fall: Every Thanksgiving Break or Teacher’s Convention weekend, alternating.
                    Winter: Half of every Christmas Break.
                    Spring: All of every Spring Break.
                    Summer: anywhere between four weeks and the entire summer.

                    III. Modification of Parenting Time.

                    Parenting time (visitation) time must be modified whenever it would be in the children’s best interest to do so. [10] Insubstantial modifications of parenting time do not require a full evidentiary hearing. [11] Motions for “substantial” modification of parenting time cannot be granted without a full evidentiary hearing. [12] If the proposed modification of parenting time would be so substantial as to be tantamount to a modification of custody, then the procedures and prerequisites for a custody modification motion apply. [13]


                    Footnotes:
                    1. Minnesota Statute section 518.175, Subdivision 1(a).
                    2. Minnesota Statute section 518.175, Subdivision 1(a) (emphasis added).
                    3. Id.
                    4. Young v. Young, 370 N.W.2d 57, 65 (Minn.Ct.App. 1985) (reversing trial court’s denial of visitation) [citing Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978) (emphasis added)].
                    5. See Matter of Welfare of N.W., 405 N.W.2d 512 (Minn.Ct.App. 1987).
                    6. J.M.G. v. J.C.G., 431 N.W.2d 592 (Minn.Ct.App. 1988) (reversing order requiring supervised visitation, where no findings were made that the children’s best interests would be served by supervised visitation, and allegations of sexual abuse by father against children could not be substantiated by authorities).
                    7. J.A.S. v. R.J.S., 524 N.W.2d 24 (Minn.Ct.App. 1994).
                    8. Id. at 27.
                    9. Minnesota Statute section 518.175, Subdivision 1(e).
                    10. Minnesota Statute section 518.175, Subdivision 5.
                    11. Braith v. Fischer, 632 N.W.2d 716 (Minn.Ct.App. 2001).
                    12. Matson v. Matson, 638 N.W.2d 462 (Minn.Ct.App. 2002).
                    13. Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471 (Minn.Ct.App. 1981).