In recent years there have been multiple attempts to create a legal presumption in Minnesota that a child should be in the joint physical custody of the child's separated or divorced parents. This year, there is a bill that reflects a renewed effort to pass a "JPS law" in Minnesota. What needs to be realized in the debate over a JPS law is not merely the importance of the presumption question, but also two very important issues: (a) how the presumption is rebutted and (b) the wide discretion of the family court. The bill currently proposed to address JPS requires the court to award joint physical custody in a contested custody case unless one parent proves by clear and convincing evidence that the other parent is unfit in a manner that would cause substantial harm to the child. The law's impact would be on cases where (a) the parties are not in agreement about the custody arrangement and (b) there is no compelling evidence that the child would be substantially harmed by joint physical custody. Family court judges that would otherwise give one parent primary custody would be prevented from doing so, because the presumption would not be rebutted. The implication of this is to substantially curtail the family court's discretion, which has repeatedly been ruled by Minnesota appellate courts to be very wide. Minnesota family law holds a child's best interests to be a paramount consideration in contested family court disputes. Oftentimes, it is THE paramount consideration. This is antithetical to the notion of a presumption – particularly a presumption that can be overcome only by clear and convincing evidence. Every family is different. Every child of divorced or separated parents has a unique experience. So the practical reality is that a presumed custody arrangement will have as many exceptions as it has cases that conform to the presumption. The rule-or-exception quandary must be resolved in some way; consequently, the family court cannot be divested of the authority to make that determination. Where the proposed law's equation breaks down is the application of a clear and convincing evidentiary standard to find "substantial harm" to the child. When the establishment of joint physical custody is more important than preventing minor harm, or even moderate harm, to the child, the paramount importance of the child's interests necessarily gives way to a different philosophy. The proposed bill expressly seeks to establish a new "public policy." The proposed public policy would necessarily alter the existing emphasis on the paramount importance of the child's best interests. In the end, with or without the proposed law, many children will be in the joint physical custody of their parents – for very good reasons. And many will not – for very good reasons. Nothing will change the wide discretion of family courts, because no public policy will alter the fact that families and children vary widely. So even if the law passes, its most fervent proponents will be foiled by the diluted application of the term "substantial harm" to create custody arrangements that are more often the exception than the rule.
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