Massive Parenting Time Change is not a Custody Modification: In re the Marriage of Suleski v. Rupe

In a recent Minnesota Court of Appeals decision, the panel of judges upheld a district court ruling that massively changed the parenting time schedule for two parents. In doing so, the panel of judges threw out the appellant’s argument that such a change to parenting time was tantamount to an unfounded modification of the custody order. Here are the facts:

At the time of the divorce, both parents lived in Northfield. Mother was granted sole physical custody and a parenting time schedule was set with both parties seeing the children frequently during the week and on weekends. The divorce decree stated that, when father moved outside of Northfield, he would be responsible for transportation to and from school. Father later moved to Randolph, which is a few miles away from Northfield, and then mother later moved to Dundas, which is also a few miles from Northfield.

Mother then moved to Anoka County. The distance between homes at that point was now 75 miles. Father moved for an order, that the court granted, asking the child to remain with mother during the school year and giving the father the summers. Mother appealed arguing that the new order was effectively a change of custody and restricted her parenting time during the summer breaks.

The court of appeals held that a court order modifying parenting time, so that the non-custodial parent has more parenting time than the custodial parent during the child’s summer break from school and the custodial parent has more parenting time during the school year, is not a modification of custody or a change of the child’s primary residence.

Where an alleged restriction arises solely from the amount of a change in parenting time, the court further held that an order modifying the parenting time like this one did, where it was without a substantial modification of over all parenting time over the course of the year, is not a restriction of the custodial parent’s parenting time.

The Court of Appeals did decree that when a modification of a parenting schedule treats holidays and other special days differently from the rest of the parenting schedule and the non – custodial parent is given exclusive parenting time during all school breaks and on Thanksgiving, Christmas, and New Year’s Day, the district court must adequately explain and justify in its order how it came to that apportionment of parenting time on those breaks, holidays and special days.

Lastly note that the Mother also appealed the trial court order requiring her to share in the driving. The Court of Appeals affirmed, finding that mother was appealing a situation that she essentially created by moving 75 miles away.

For more information see In re the Marriage of Suleski v. Rupe, N.W.2d –, A13-2031 (Minn. Ct. App. Oct. 20, 2014).