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Winter 2006

Court of Appeals

Joint Custody

In Re the Custody of J.J.S., minor child

(Filed January 3, 2006)

Respondent County sought child support from Appellant Father on behalf of Respondent Mother and, in accord with the parties’ Recognition of Parentage, Appellant Father sought joint legal and physical custody of the parties’ child, who was born out of wedlock in 2003. Appellant argued that the custody statutes are unconstitutional and that joint custody should be the preferred custody option. The district court awarded Respondent Mother sole physical custody, and Appellant sought review by the Court of Appeals.

The Court of Appeals ruled that the statutes were subject to “intermediate scrutiny” from the constitutional perspective because Appellant was arguing gender discrimination. The Court of Appeals observed that equal protection requires like treatment of “similarly circumstanced” citizens and prohibits invidious discrimination. The Court stated that parents are not similarly circumstanced since mothers are identifiable and must be present at birth whereas fathers may not be identifiable and may not be present at birth; and the incontrovertible dissimilarity between mothers and fathers precludes any invidious discrimination.

Appellant also argued that the statutes discriminate based upon marital status. However, the language of the statutes provides the same relief for married fathers and unmarried fathers under Minnesota Statutes Chapter 518. The Court of Appeals ruled that the statutes are not constitutional since they are substantially related to the important governmental objective of ensuring that children born to unmarried parents are properly provided for.

Appellant argued that the Minnesota courts should presume in favor of joint physical custody. The Court of Appeals referred to case precedent holding that joint custody is not preferred, and commented that changing the law is outside the scope of Court of Appeals review.

The Court of Appeals also reviewed the merits, though Appellant did not expressly preserve that issue for review. The Court of Appeals ruled that the district court properly addressed the statutory factors, and affirmed the sole custody award to Respondent Mother.