On a personal note, a real thrill to share the same air as Steve Cannon, Charlie Boone and Sid Hartman, among others - if only for a short time.

Topics addressed in the interview include custody, child support, spousal maintenance, property division, no-fault divorce, common misconceptions, and the subtle differences litigants will find from county to county.

Run Time: 13:54

Custody is an emotionally-charged issue, with a lot of uncertainty for parents and kids.

Topics in this podcast include the difference between physical custody and legal custody, joint custody as compared to sole custody, the "best interest of the child" factors and the key facts judges look toward in making custody decisions.

Run Time: 12:52

Modification of the physical custody of a child is one of the more difficult things to do

When the court deals with physical custody the first time around, the "best interest of the child" standard applies. The judge takes into account 13 factors, such as who has served as the primary caretaker for a child, the stability of the home environment of each parent, and the wishes of the children, if of suitable age and maturity.

But what if several years after the entry of the initial custody order a parent seeks to modify it? It's a four-step analysis, in a two-part process. In other words, it's more complicated. Here's how it works:

In the absence of an agreement among the parties (or integration of the child into the non-custodial parent's home with the consent of the custodial parent), the court must find:

1. There has been a substantial change in circumstance since the issuance of the initial custody order;
2. The modification would serve the best interest of the child;
3. The present environment endangers the physical or emotional health, or natural development of, the child; and
4. The benefits associated with the modification outweigh the potential harm to the child.

In practice, the primary focus involves the endangerment element.

Proving "endangerment" is not easy. In the eyes of the court, endangerment takes on the most traditional of definitions. Has the child been physically abused by the other parent? Exposed to drugs, pornography or provided alcohol by the other parent? Has the child's health been neglected? Have the child's nutritional needs been ignored? Has the child's emotional health changed substantially for the worse? Is the child failing in school? 

"Endangerment" does not include a child wanting to relocate with the non-custodial parent, exposing a child to a new significant other, a child's dissatisfaction with the social structure of the custodial parent's home, or ongoing arguments between a child and the custodial parent. Actual harm to the child must be proven - and that can be tough, especially if the situation does not involve physical abuse (in those cases, we usually seek the opinion of a counselor or psychologist).

Procedurally, the parent wishing to modify custody must schedule a hearing with the court and serve motion papers on the other parent. At that hearing, the court must accept as true the allegations raised by the non-custodial parent. The question for the judge: if accepted as true, do the allegations establish a primae facie (at first glance) case of endangerment?

If the answer is "yes," the court will usually appoint a Guardian Ad Litem to investigate and set the matter for a follow-up evidentiary hearing (trial). If the answer is "no," the matter is dismissed.

The Minnesota courts web site provides a number of resources for litigants who may encounter a Guardian Ad Litem as part of their case:

• Online GAL Brochure, in English, Spanish, Hmong and Somali.
• GAL district manager contact information.
• General program information, such as goals, values and policy.

Helpful post this week from Ben Stevens' South Carolina Family Law Blog. A trusted colleague of Stevens, Joanne Hughes Burkett,  family court Guardian Ad Litem, authored a guest article for parents entitled "What This Guardian Ad Litem Wants Parents and Parties to Know."

Here's what Burkett says:

• A Guardian ad Litem (GAL) is not your child’s guardian. A guardian is a person who legally has the care and management of a child. Typically, this is a parent. The role of the Guardian ad Litem is to assist the Family Court Judge in ascertaining the best interests of your child.
• The Guardian ad Litem will NOT make the final decision about custody and visitation. Only the Family Court Judge can make that decision. The Guardian ad Litem’s report is only one of the things the Judge will consider in deciding what is best for your child.
• The Guardian ad Litem’s role as legal advocate for your child ends at the Final Hearing, unless that Order is appealed. We are not their GAL forever.
• You control how expensive the case is, and, by and large, the Guardian ad Litem’s fee, which you will have to pay. Be careful not to run up the bill.
• If you think there is something the Guardian ad Litem needs to know, tell your lawyer first. It could affect the strategy of your case. If the GAL needs to know, your lawyer can write, fax, call, or email the information.
• What you tell me is NOT confidential. Because I am not your lawyer, I do not have a duty to keep in confidence anything you tell me.
• I cannot give you legal advice, so if you have questions or concerns, talk to your attorney.
• All Guardians ad Litem do their work differently. Ask your lawyer how to best work with the GAL in your case.
• The less a child knows about the litigation, the more impressed I am with the parties.

Thanks to Ms. Burkett for her thoughts.

HF69

This issue has come up for several years now...but not when Republicans controlled the Minnesota House and Senate. Will that make a difference?

You can read the entire bill here. In the meantime, here are some of the proposed provisions that modify (underlined) existing law:

• Joint physical custody means the parents shall share time with the children as equally as possible;
• ...the legislature declares that public policy is advanced and the well-being of Minnesota's children is promoted through the recognition of both parents' fundamental freedoms to actively participate in the care, custody, and companionship of their children...
• In cases of marital dissolution or unmarried parentage, when paternity has been established, both parents enjoy a rebuttable presumption of joint legal and physical custody of their children.

Here are some comments posted by a good cross section of family practitioners today:

• "This is a thoroughly bad bill, it is largely a political viewpoint about how the world should be, much of which is at variance with reality."
• "I think this bill has some problems even big problems, but overall the concept is sound."
• "Practicing in greater Minnesota, I can tell you I’d rather have our legislature spend money helping us to better implement the best interest standard, rather than on changing the current structure we have."'
• "The bill creates almost a mandate for joint physical custody. I think it is irresponsible."
• "How is it constitutional, or in the best interests of the children, to explicitly NOT start the parents on equal grounds?"

I invite your comments as well. We'll keep you posted on the progress of Drazkowski's efforts. 

New emphasis has been placed on the actual amount of parenting time that has been awarded, as opposed to mere labels. For that reason, the label, itself, has basically become meaningless. Some, including me, predict the end of the label in the next five to seven years.

The support guidelines now discount child support for an obligor (the one who pays) if they spend a certain amount of parenting time with their child, or children. Three broad categories exist: uninvolved (less than 10% of the available time with children), involved (between 10% and 45% of the available time with children), and equal (above 45% of the available time with children. The measuring tool is usually overnights.

Parents with less than 10% parenting time receive no credit against their basic child support payment. Parents who are "involved" receive a 12% credit. Parents who are "equal" receive a 50% credit.

We are frequently asked about what sort of parenting schedule might be awarded to a current, or potential, client. With that, we thought it would be helpful to outline the "typical" parenting time schedules that exist, along with the correlating discount percentage against basic child support.

Limited/High Risk Schedules: No child support credit available, as parenting time is less than 10% of available time.

• Supervised Visits: Visits limited to a supervised safety center a few hours per week. Typically reserved for cases of endangerment. No basic child support credit.
• As Agreed Upon: Visits are limited, but unsupervised. Scheduled ad hoc. No basic child support credit.

Typical Non-Custodial Schedules: A 12% child support credit is afforded, as time exceeds 10% of available time, but is less than 45% of available time.

• Every-Other Weekend (F-Su): Bare minimum schedule for involved non-custodial parents. Usually involves parents who live some distance apart, but close enough to facilitate rotating weekends. 12% basic child support credit. 
• Every-Other Weekend (F-Su) & One Evening Per Week: The old "standby," with children returning each weeknight to the primarily custodian's residence. 12% basic child support credit.
• Every-Other Weekend (F-Su) & One Overnights Per Week: Many judges afford overnight visits during the school week. 12% basic child support credit. 
• Every-Other Weekend (F-Su) & Two Evenings Per Week: Slight increase from the "old standby," but still no overnights during the school week. 12% basic child support credit
• Every-Other Weekend (F-Su) & Two Overnights Per Week: 6 of 14 overnights. Probably lands in the "joint physical" label about 50% of the time. 12% basic child support credit, with possibility of increase by judge, but not to 50%.
• Every-Other Weekend (F-M) : Minimal involved schedule includes time until Monday morning school drop off. 12% basic child support credit.
• Every-Other Weekend (F-M) & One Evening Per Week: One additional overnight e/o Sunday, but still a 12% basic child support credit.
• Every-Other Weekend (F-M) & One Overnight Per Week: 5/14 overnights. 12% basic child support credit.
• Every-Other Weekend (F-M) & Two Evenings Per Week: Argument could be made that this borders on 45% of the time, without actual overnights. 12% basic support credit.

Typical Joint Physical Schedules (Equal Time): A 50% basic child support credit is afforded against basic support, as time exceeds 45% of available time.

• Week On/Week Off: Easiest equal access schedule to follow, but some don't appreciate a full week without seeing children. 50% credit.
• Six & One (Overnight): Basically week on/week off, with a day in the middle to see the children. 50% credit. 
• Six & One (Evening) : Same as above, except no overnight during the other parent's week. 50% credit. 
• Two-Two-Three-Three: Schedule rotates M/T then W/TH, the F, S, S, then starts over, but parent who didn't have on weekend has M/T. 50% credit. 
• Two-Two-Five-Five: Concrete every M/T with one parent, every W/TH with the other, then rotate F/S/S. Each parent has two days, followed by five days, with the children. 50% credit.

The same is true in Minnesota. While easy to simply utter "we're a no-fault state," we're not entirely no-fault. Here's a compare/contrast between they Thyden summary and Minnesota law:

Property:

East Coast. In determining how marital property is to be equitably distributed, each jurisdiction has another list of factors the court must consider.  In Maryland, there is a catch all provision that includes any other factors that the court considers appropriate.  In Virginia, one factor is circumstances contributing to the dissolution of marriage.  In DC, it is circumstances contributing to the estrangement.

Minnesota: We see fault creep into asset and liability allocations through the dissipation of assets, concealing of assets, or "sin spending." If a party dissipates assets (sells while divorce is imminent) the non-selling spouse will likely receive their share of that asset, on the balance sheet, as part of the ultimate distribution. If a spouse conceals assets, the court may ultimately award the concealed asset, in full, to the innocent spouse. And, if one party gambles away marital assets, or incurs substantial debt in relation to alcohol abuse, cheating or gambling, the court may allocate the financial consequences of "faulty" behavior to the "sinning" spouse. 

Custody: 

East Coast. Marital misconduct does not necessarily make you a bad parent.  The test is best interest of the children.  But the parties think it is important that the judge know what a scoundrel the other parent is, especially if the other parent is slinging mud, too.

Minnesota. Minnesota's "best interest standard" takes into account behavior that impedes a spouse's ability to adequately parent a child. For example, if alcoholism led to a breakdown in the marital relationship, no impact on spousal maintenance. Custody? The court is absolutely interested in hearing about it...and how the alcohol abuse has affected the children. The same is true with domestic abuse, adultery or late night partying.

Alimony:

East Coast: In each jurisdiction, the law provides a list of factors the court must consider in determining alimony. In Maryland and DC, one of the factors is circumstances surrounding the estrangement of the parties. In Virginia, adultery can prevent a spouse from receiving alimony unless the court finds that would create a manifest injustice.

Minnesota: A list of factors for the court to consider, but the circumstances surrounding the estrangement of the parties is not one of the them. Nor is the question of adultery. Many of our clients are shocked ("outraged" is a more accurate description) to learn that their spouse's cheating has no bearing on an award of spousal maintenance. Might a newly-elected conservative legislature in Minnesota be open to changing the statute? Wouldn't surprise me.

Galbraith writes:

It teaches kids what happens when their parents separate in an entertaining, online way. The tour says "A walk through Changeville will tell you what to expect and help you deal with all the different feelings you might have and along the way there's all kinds of fun games and activities!"

Legal words and how kids are looked after is explained on Legal Street. On Break Up Street, kids learn what can happen during the process when their parents are going through rough times. There also is a section where kids can create some art.

What a great tool for kids.

Nothing but respect for Galbraith. Appreciate the creativity behind the crafters of Changeville. But, after a stumble down "breakup street" in a "fun online world," I found it strange to type in my feelings about being in the "messenger trap." Kind of like a visit to Epcot Center, and taking a ride on the "The Story of Meat." Something just seems out of place.

Am I off base? Anyone try it and love it?

I represent a client with similar issues. The kids are angry with mom about the fact that she had (and is having) an affair with the man across the street. The kids have demanded that she stop seeing him, but mom refuses, citing "adult privilege." It hasn't been pretty, but my client has struggled with what he should do to encourage on ongoing relationship between the kids and mom.

According to Brette McWhorter Sember, author of How to Parent with Your Ex:

The first thing to remember is that while it's always important to listen to your child's feelings and opinions, spending time with the nonresidential parent is not optional.

Your child doesn't get to pick and choose when she is going to go or what circumstances will gain his approval. There are days when kids don't want to go to school, but you don't let your child stay home on those days. Similarly, you can't let your child decide to just skip visitation.

Visitation is more than just a schedule. It is a connection to both parents. And continuing to have a connection with both parents is absolutely essential for your child.

Children are not in charge of visitation. Parents are. Children's opinions are important, but not decisive. Children are not old enough or mature enough to hold the authority to decide when and if visitation happens. If you give your child that authority you will confuse and overwhelm him. Your child wants and needs to know that both parents are an unconditional part of his or her life.

If your child is a teen, she may need more control over visitation than younger children are allowed, however this does not mean that she can write the other parent out of her life. Teens need to feel some control over their lives, and need time for school, jobs, friends, and activities, but they also do desperately need real connections with both parents.

It is upsetting for everyone involved when a child refuses to go on visitation, but if both parents insist together that there is no choice, then no one will be the villain and your child will have to cope with the reality of the situation.
 

In cases where there is an extended period of disassociation, reunification therapy may be the only option that will work. You can learn more about this process through Mary Ann Aronsohn's post on Parental Reunification Therapy.

In my opinion, clients find themselves in dangerous territory when children refuse to spend time with the other parent. They can't win.

If they force the parenting time, the kids may do the same thing to them, or run away, or hurt themselves - they often claim. Sounds silly, but I've had a judge issue a decision based upon a young teen's threat to run away if she didn't get her way. With due respect, probably not the right basis to make a custody determination, but my point is that these types of threats may be treated seriously by the judge.

If they don't force the time, the other parent can easily argue that they enabled parental alienation, which may provide a basis for the court to sanction the "innocent" parent by denying custody.

Personally, any parent who simply puts their hands in the air and says "I don't know what to do" better figure out a solution...fast. Professionals are here to help. The "I tried" argument doesn't usually stick with the Court. It boils down to the fact that kids are kids and don't rule the roost. Judges expect a certain level of "parenting," which includes getting children to do the things they don't want to - like dishes, homework, and, sometimes, spending time with the other parent.

The good news is that most know better and do the right thing. They understand that there are productive ways to help kids through the dissolution process. Ben Stevens, a 15-year divorce lawyer in South Carolina (and editor of the South Carolina Family Law Blog), recently cited an article that addressed how to help children adjust during period of marital dissolution. He offers the following tips: 

1. Make sure your children understand that they are not the reason for the divorce. Keep the explanation simple, 'your mother and I can no longer live together happily. You need to know that this has nothing to do with you. Your mom and I both love you very much and nothing will change that.'
2. Take care when discussing litigation. Your children do not need to know the sum and substance of all legal documents, depositions, and proceedings. If you and your spouse are unable to decide the issue of custody, you may wish to offer a simply explanation like 'a judge is going to decide the time you will spend with your mommy and daddy because we both love you very much and can’t agree.'
3. Allow the children to love both parents. Create an environment where the children can be free to love both parents. If you cringe or change the subject when your child brings up Daddy’s name, you may be sending a message to your child that you do not approve of his or her relationship with your ex.
4. Do not send messages through your children. If you are unable to communicate by any means with your ex whether in-person, by phone, or e-mail, you may wish to consider co-parenting counseling or request a parent coordinator.
5. Do not say disparaging things about the other parent in front of the children. Judges will expect you to be supportive of the children’s relationship with their other parent
6. Be supportive of your children’s activities. If at all possible, take your children to their activities when it is “your time.” On the other hand, be respectful of the other parent’s time with the children. It’s difficult to look supportive of the other parent’s relationship if you always schedule well-visits during the other parent’s time.
7. Use good judgment before introducing your children to someone you are dating. Introducing your children to someone that you have just met or are just beginning to know can be confusing and even detrimental to your children.
8. Take the high road when possible. This may sound contrary to the advice you might expect from a divorce attorney. However, when it comes to things like schedule changes, sometimes it is better to give a little even if the favor isn’t always returned. In the event the matter goes to court, it is always better to be perceived as the parent who is flexible and cooperative.

I agree with Ben, and would add that anyone who suspects their child is having a difficult time should contact a good family therapist as soon as possible. There are many excellent professionals in our area that we can recommend. I find parents (whether a client or an opposing party) often waiting  too long to deal with the serious issues their kids face during divorce. Feelings of fault, hatred toward a parent, sense of loss and fear of rejection are just a few of the signs to watch for.

Minnesota's Domestic Abuse Act is contained within Minnesota Statutes Section 518B. It defines domestic abuse as "physical harm, bodily injury, assault, or the infliction of imminent physical harm between family or household members" or "criminal sexual conduct committed against the family or household member by an adult family or household member." The physical acts described above are relatively straightforward.  Difficulties arise, however, when threats of physical harm are not followed with an act resulting in physical harm.  The question for the Court involves whether a threat results in fear of harm and whether that fear was reasonable under the circumstances.

A litigant bringing an act of domestic abuse to the attention of the court is ultimately seeking an Order for Protection. Such an Order prohibits contact by the offending party upon the victim, and often denies the perpetrator access to the victim's residence and place of employment.

In order to secure an Order for Protection, the victim will first petition the court without notice to the perpetrator.  The court must accept as true the allegations contained within the petition.  If these allegations rise to the level of domestic abuse as defined by law, the court will enter a temporary order.  Then, the perpetrator is served with notice of the entry of the order.  At that point, the perpetrator may contest the issuance of the order by participating in an evidentiary hearing (a mini trial) on the issues.

If an Order for Protection is entered, criminal penalties are attached to a violation of the order.  As an additional consequence, if the situation involves acts of domestic abuse among a husband and wife who are dissolving their marriage, it is rather unlikely the court will consider an award of joint physical custody of the children of the parties.

In examining the best interests of a child, the Court will examine 13 criteria, including:

• The wishes of the child's parent or parents as to custody;
• The reasonable preference of the child as to custody, if the court deems the child to be of sufficient age to express preference;
• The child's primary caretaker;
• The intimacy of the relationship between each parent and the child;
• The interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;
• The child's adjustment to home, school, and community;
• The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
• The permanence, as a family unit, of the existing or proposed custodial home;
• The mental and physical health of all individuals involved; except that a disability of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custody arrangement is not in the best interest of the child;
• The capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;
• The child's cultural background;
• The effect on the child of the actions of an abuser, if related to domestic abuse that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and
• The disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

Legal custody grants a parent the right to have a role in the educational, medical and religious decisions made on behalf of a child. There is a presumption in Minnesota that parents should be granted joint legal custody. This presumption may be overcome, however, by demonstrating that such an award does not serve the best interests of a child (if, for example, a parent experiences significant mental illness or has played no role in the life of a child).

Physical custody refers to the day to day physical location of children. The presumption in Minnesota is that one parent should have sole physical custody and the other should be awarded an appropriate amount of parenting time with the children. This presumption may be overcome, however, by demonstrating that such an award does not serve the best interests of a child - usually by showing that the parents have each played a significant role in a child's upbringing, get along relatively well, communicate respectfully with one another, have no history of domestic abuse and intend to remain living in close proximity (within the same school district) of one another. Some judges are much more open to an award of joint physical custody than others.

If one parent is awarded sole physical custody of a child, the other will typically receive an award of parenting time. Very often, such an award involves spending time with the children every-other weekend, one or two evenings per week, half of all holidays and non-school days during the academic year, and a number of weeks of uninterrupted vacation time during the summer months.

BTN and AVD are the parents of DD, who was born on February 6, 2007. One week later, Stearns County Human Services filed a petition alleging that DD was a child in need of protection or services because the parent's first child, AD, experienced egregious harm while in their care, resulting in his death. After an emergency protective-care hearing, DD was placed in foster care. The county subsequently determined that AD had experienced egregious harm while in the care of BTN. and AVD. On that basis, the county petitioned to terminate the parental rights of DD's mother and father.

AD was nine months old when he was taken to the emergency room. BTN and AVD told the responders that AD had been standing in front of the couch and had suddenly arched his back and fallen backward onto the carpeted floor.  AD was nonresponsive, and the emergency room doctor who examined him concluded that he had suffered severe head trauma.  The doctor ordered a CT scan of AD’s head, which revealed a subdural hematoma.  AD died during brain surgery.  An autopsy was performed, and the medical examiner concluded that AD’s death was a homicide, caused by blunt trauma to the head, which resulted in a skull fracture and a subdural hematoma.

In orders dated November 29, 2007, the district court terminated the parental rights of BTN and AVD based on its determination that a child (not DD, but AD) had experienced egregious harm in their care and that it was in DD’s best interests for both parents’ parental rights to be terminated.

Parent rights may be terminated only for grave and weighty reasons. The court must exercise great caution in termination proceedings, finding such action proper only when the evidence clearly mandates such a result. A district court may terminate parental rights based on a determination:

that a child has experienced egregious harm in the parent’s care which is of a nature, duration, or chronicity that indicates a lack of regard for the child’s well-being, such that a reasonable person would believe it contrary to the best interest of the child or of any child to be in the parent’s care. 

Egregious harm means the infliction of bodily harm to a child or neglect of a child which demonstrates a grossly inadequate ability to provide minimally adequate parental care. To terminate the rights of a parent who has not personally inflicted egregious harm on a child, a court must find that the parent either knew or should have known that the child had experienced egregious harm.

On appeal, the parents contended that contend that the district court’s findings were insufficient to meet the "knowledge" standard - and the court of appeals agreed:

The district court found that AD’s fatal injuries were non-accidental and constitute egregious harm. The district court further found that because BTN and AVD were AD’s only caretakers, at least one of them must have caused the egregious harm and that a non-perpetrating parent would have reasonably known of the harm because of AD’s 'noticeable symptoms.' But the finding that a non-perpetrating parent would have observed symptoms is, at most, a finding that the parent knew or should have known that AD was injured. It is not a finding that a non-perpetrating parent would have been reasonably aware that AD had sustained egregious harm. The district court did not determine which parent caused the harm, identify the 'noticeable symptoms,' or find that the symptoms would have reasonably led a non-perpetrating parent to know that AD’s injury was the result of 'some conduct' satisfying the ‘egregious harm’ definition.

Judge Bjorkman concluded:

Because Minn. Stat. § 260C.301, subd. 1(b)(6), requires a finding that the non-perpetrating parent not only knew of an injury but also knew or should have known that the injury was sustained 'as a result of some conduct satisfying the ‘egregious harm’ definition,' the district court’s findings with respect to a non-perpetrating parent’s knowledge are insufficient.

The court was essentially saying that a non-perpetrating parent cannot be held responsible for egregious harm to a child unless the parent, because of actual or reasonable knowledge, had the opportunity to respond to or protect against the harm. While the district court found that each party gained knowledge of the actions of the other after the suit was initiated by the county, knowledge acquired after the fact does not meet the relevant standard to terminate parental rights.

As noted above, parent rights may be terminated only for grave and weighty reasons under Minnesota law. Like you, I am shaking my head. These two parents have seemingly gotten away with the murder of a child based on the "I know nothing" defense, pointing at each other. Bad enough that they are allowed to even conceive another child. Now, they get to keep it?

• Popel v. Popel: Minnesota Court of Appeals (Unpublished). Judge Halbrooks held that the district court did not abuse its discretion in awarding joint physical custody to the parties but remanded for a recalculation of child support and reallocation of non-marital interests.
• Blaeser v. Fiscus: Minnesota Court of Appeals (Unpublished). Judge Halbrooks opined that the district court did not abuse its discretion by failing to modify child support following the emancipation of appellant's oldest child. 
• Murphy v. Murphy: Minnesota Court of Appeals (Unpublished)  Judge Halbrooks found no error in the district court's unequal allocation of marital property.

Attorney Robert Mues notes that there are a number of different factors and circumstances that have an effect on the determination of custody. As in Ohio, Minnesota judges must consider a number of relevant factors when determining the best interest of a child. One of those factors includes whether either parent has continuously and willfully denied the other parent’s right to parenting time or visitation as ordered by a court.

While visitation denials may be relatively easy to prove in court, that alone doesn’t amount to parental alienation. It is not uncommon for some amount of alienation to occur when parents first separate. Usually, the alienation subsides after the parents’ transition through the separation and move on with their lives. In some cases it doesn’t, and instead it continues and escalates to what has become referred to as “Parental Alienation Syndrome.”

This disorder was first identified by Richard A. Gardner, a forensic psychiatrist in the mid-1980s, who defines it as:

Mues accurately points out that there are three stages of parental alienation syndrome. These stages include mild, moderate and severe. In a mild case there are naive alienators and the perpetrator can be educated and changed. However, in a severe case the perpetrator is often delusional and their entire being is focused on destroying the other parent’s relationship with the child. Experts must be brought in to prove the alienation and, more importantly, to assist the child in gaining an accurate perspective on things.

Having handled many custody disputes involving parental alienation syndrome, I can honestly say that they are, by far, the most difficult and raw of all family cases. At the end of the day, the parent who engages in parental alienation behaviors is committing an act of abuse upon a child. The caselaw in Minnesota on this issue is rather undeveloped. But, like so many psychological theories and concepts, the public, and the courts, are becoming much more familiar with the syndrome and consequence of parental alienation.

There are some experts and jurists who have criticized the concept of parental alienation syndrome, calling it "inadmissible junk science." This author, however, questions how many times they've actually experienced and dealt with the conduct described by Gardner. Parental alienation syndrome is very real (no matter what you call it) and is an example of a parenting at its lowest and most neglectful level.

• Donovan v. Donovan: Minnesota Court of Appeals (Unpublished). Judge Shumaker held that a child support bonus provision was unambiguous and that the doctrine of laches is inapplicable to child support cases.
• Adler v. Espinosa: Minnesota Court of Appeals (Unpublished). Judge Lansing opined that the district court appropriately determined physical custody and child support obligation.
• McCormick v. McCormick: Minnesota Court of Appeals (Unpublished)  Judge Halbrooks found no error in district court's valuation of real estate and denial of fee award, but reversed district court's award of 100% of the marital equity in the homestead to wife.

Here are a few ways to discredit the custody evaluator at trial:

1. Bias. In personal injury cases, the insurance company will hire a doctor to examine the injured. Insurers pay thousands of dollars (now you know where your premiums go) to certain doctors who are prone to rendering an opinion favorable to the insurance company. These "independent" experts are often discredited by the plaintiff's lawyer bringing out the hundreds of prior opinions these physicians have rendered against injury victims. The same holds true in family court. Most custody evaluators have years of experience and have rendered hundreds of opinions. If there is consistency in those opinions, they carry a bias. Certain experts are prone to rendering certain opinions. Make the court aware of the bias of the evaluator and the recommendations may be discredited.
2. Diligence. We've cross-examined custody evaluators who have spent less than an hour in the presence of our client and the children that are the subject of the action. How much can anyone learn about a familial situation in 60 minutes of observation. What if the kids were having a tough day? What if the parent is nervous about the scrutiny of the evaluator? What if the dog won't stop barking? Think of it as a movie. If someone stopped "Titanic" before the ice berg and never watched the ending, they'd think everyone arrived safely in New York and wouldn't know the whole story. Evaluators are busy people. That haste can be taken advantage of.
3. Qualifications. Just who is the evaluator in your case? Do they have Ph.D.? How many evaluations have they conducted? Who are they employed by? What is their degree in? Have they been subject to an action for malpractice or ethics complaints? Disciplined by a professional board? Are they a licensed psychologist? All of these questions go to the foundation of the expert's opinions. Get them disqualified as an expert and the court cannot rely on their recommendations.

These same techniques can be used to discredit other court-appointed custody experts, such as a Guardian Ad Litem. No kidding - we had case in which the adverse Guardian had a degree in art history and failed to spend a single moment with our client in the presence of our client with the children (despite a statutory requirement that she meet with the parent in the presence of the children in the relevant home). We attacked her opinions on all three of the grounds referenced above.  

A parenting consultant is part mediator and part arbitrator. They can listen to parents and facilitate discussion, but also possess decision-making authority. Most are experienced family practitioners or child psychologists who work primarily in the area of parenting dispute resolution.

Parenting consultants offer the following benefits:

• Good decisions;
• Fast decisions; and
• Cheap decisions.

Most parties agree to employ a parenting consultant as part of their divorce decree and appreciate the ability to turn to someone with decision-making power with a simple phone call (try doing that with a judge) in the absence of ongoing legal fees. Most agree that the decision of the consultant is binding and may only be modified with an appeal to the court within 14 days from the decision. Parties typically split the cost of the consultant.

A divorce can be a painful and difficult experience, but if you understand the functions and limitations of the legal system, the process becomes less frustrating. It is our hope, as Judges of Family Court, that this pamphlet will give you a better understanding of the process, and help you get through your divorce with realistic ideas and goals.

Minnesota’s divorce system is based on the principle of “no-fault,” meaning that a dissolution will be granted if either party believes that the marriage is over. Generally the causes of the failure of the marriage are not an issue in court. All that matters is that the marriage needs to be ended.
It is impossible for us to heal the emotional wounds created by your divorce. You must understand that the legal system is not a tool for punishment of your spouse. The courtroom isn't the place for revenge. We must decide your case on the basis of unique facts. In most cases, the law does not permit us to compensate either of you for the other’s misconduct.

Settlement

The best way to conclude your case is to settle it. Through compromise and cooperation, a settlement can lead to greater mutual satisfaction and lessened animosity between you and your spouse. In most cases, negotiations toward settlement can be more productive and far less expensive than trial. If negotiations fail and you must try your case, we will make rulings that will permanently affect you and your children. Our rulings must be made exclusively upon the limited evidence that is presented in court, and nothing else. Because we are restricted in what we can and cannot do, a settlement can offer a wider range of options. Ask the court administrator for information about mediation programs. A mediator is a neutral person trained to help you and your spouse reach a settlement.

Variations

Every dissolution is different. Your results may be very different from your neighbor’s, friend’s, or relative’s. You cannot rely upon what happened in their cases and assume that your results will be the same. Cases that seem similar may, in fact, be very different and will be treated differently under the law. For this reason, you should look to your lawyer for your legal advice and information. Your friends and relatives usually do not have a grasp of the law and your case, and accepting their advice may hinder you in the long run.

Finances

In the marriage dissolution, the income, assets and debts accumulated during the marriage must be allocated between you and your spouse. The law is that you and your spouse are financial partners during the marriage and are presumed entitled to share in both the assets and income the partnership made. You must make a full disclosure of your finances. For most people, life-styles change after a divorce. Since divorces do not create property or income, we must divide the marital resources between two separate households. It costs more to run two households than one. If you or your spouse have not been employed during the marriage, it may be necessary to seek employment. In considering a settlement, you should consider whether you can afford the attorney’s fees to fully litigate your case. Fees and costs in contested cases can be quite high. Usually, a settlement prior to trial reduces the expenses considerably, an important consideration if you come to the divorce with limited resources.

Issues

Dissolutions generally involve four major issues: child custody and parenting time, child support, spousal maintenance and a division of property and debts. After the case is concluded, we may later be asked to modify custody, parenting time or support. You need to understand each of these aspects of your case.

Child Custody

Both parents and their children may be required to attend an education program before the dissolution is granted. The program will help you understand what affect divorce has on children, and how you can make the transition less traumatic for them. Remember, your marriage may be ending, but you will always be parents to your children. Most parents will share parental responsibility for their children after the dissolution. In doing so, you must communicate and confer with each other in making decisions that will affect your children.

Usually, we will give one parent primary residential care (custody) of the children. Unless there is a good reason to limit parenting time, we will grant the other parent frequent parenting time. We decide custody solely on what is best for the children. Often, one of the parties is hurt by our decision, especially if that party sees the decision in a "win/lose" light. In truth, there can be no loser if the children’s welfare is protected.

In virtually all custody contests we will direct both parties to participate in mediation to resolve that issue. A mediator is an unbiased third party who can often assist the parties in reaching agreement upon what is best for the children. An agreement on custody will certainly make your case easier and help your children immeasurably in dealing with your divorce. If domestic violence has occurred, the Court cannot require you to participate in mediation.

If an agreement regarding parenting time is not reached, a custody study may be ordered, with costs assessed to the parties.

In cases where child abuse or neglect is alleged by a parent during a dissolution, we must appoint a guardian ad litem (GAL) to represent the best interests of the child with respect to custody, support and parenting time. A GAL may also be appointed if the court believes the conflict in the case presents a potential hazard to the child’s welfare or the child’s interests are not being adequately served. The GAL is to conduct an independent investigation into what would be best for the child and to advocate for the child’s best interests. GAL’s must maintain confidentiality of information, monitor the child’s best interest throughout the proceedings, and present written reports to the court on the child’s best interests. If a GAL is appointed, you are likely to be assessed a fee for their services.

Child Support

Aside from continuing to love your children and seeing them often, you have no higher obligation as a parent than to continue supporting your children after the divorce. Child support is more important than any other debt or financial obligation. Both parents are required to support the children but the non-residential parent will be directed to pay his/her portion of the support to the other. This does not mean that the residential parent is not contributing to the support.
Minnesota has adopted guidelines for child support that we are required to follow. Your friends and relatives may have been involved in divorces years ago or in other states and receive or pay higher or lower support than our guidelines provide. The child support in your case will be based upon the incomes of both parents and the needs of your children under the guidelines established by the State. It is possible to deviate from the guideline amount but you must prove that the deviation is legally justifiable.

Spousal Maintenance

We find it necessary to award spousal support in some cases. As with child support, we will consider two factors: one party’s need and the other’s ability to pay. Both of these factors must be proven in court by the requesting spouse. Spousal support may be awarded to either a husband or wife and, depending on the length of the marriage and other factors, the spousal support may be permanent or for only a short duration.

Property Division

Under Minnesota law, we must try to make a “fair and equitable distribution” of marital property and debts. “Equitable” does not always mean “equal.” Many factors, including child support, custody and spousal support awards, can cause us to make an unequal (but still equitable) division of property. We will not generally divide the property and debts that arise outside the marriage.

Attorney’s Fees

We can order one party to pay some or all of the other’s attorney’s fees. We do this to assure that both parties have equal access to competent counsel. We do not award fees in every case, we must first find that one party has a greater ability to pay than the other does.
You cannot ever be certain that we will award fees. For this reason, and because of the great drain that fees can be on marital assets, everyone (parties and attorneys alike) should make every effort to resolve a dissolution case as economically as possible.

Do Not Write Letters To Your Judge

We are not permitted to read letters containing facts or allegations about your case, nor can we speak with you or your friends/relatives on the telephone. If there is something we need to know, inform us by scheduling a hearing and filing motion papers.

Have Reasonable Expectations

You will certainly be disappointed if you expect to “win” on every issue. Rarely is either party happy about every ruling in a case. Even the best rulings leave both parties somewhat dissatisfied. Encourage your attorney to give you a realistic projection of the outcome of your case.

Keep Communication Open With Your Spouse/ Former Spouse

As long as children are involved, you and your former spouse will have to work together. Your children will suffer to the degree that you and your former spouse cannot communicate or cooperate.

Get Professional Help To Deal With Your Emotions

Please do your best to keep emotions out of the case. Your feelings of anger, pain, and betrayal are understandable, but expressing them inappropriately in court may interfere with your ability to provide us with the information we need. If you have trouble with the hostility, anger, or depression that often occurs in divorces, don’t hesitate to get counseling to help you through it. A good counselor can help you, and your children, get through this difficult time and avoid having the anger become counterproductive.

Encourage and Support Parenting Time (Visitation)

If you are the custodial parent and the court has ordered parenting time between your children and your ex-spouse, you have a duty to encourage parenting time. You must do more than just stay out of the way or leave the choice to the children. Encourage your children to see your former spouse frequently and to enjoy the contact. Never use support or parenting time as a lever or bargaining chip in dealing with the other parent. However, if mental health, chemical dependency, abuse or other issues arise and you think your children are not safe with your ex-spouse, seek professional advice on what to do.

Give Your Children a Chance

The way you and your spouse handle your divorce will have an enormous impact upon your children. If you argue and fight, their problems and pain will be magnified. By acting reasonably, you can help your children through one of the most difficult events of their lives.
 

The most common expert we employ is a home appraiser. In most cases the most valuable asset for division is the marital homestead. If one party elects to remain in the homestead we must calculate the equity in the house to determine the value of the property settlement. Naturally, the first step to establishing equity involves the determination of the market value of the property.

A typical homestead appraisal costs around $350. They take approximately one (1) week to complete. Many clients ask if a realtor’s market analysis can substitute for an appraisal. If the parties agree, a market analysis is sufficient. However, a realtor’s market analysis does not hold the same evidentiary weight as a certified real estate appraisal. For that reason, the appraisal is usually preferred.

Suppose you are 40 years of age and your union pension indicates that at present you qualify to receive $1,000 per month at age 55. Those benefits, despite the fact they are not yet realized, have an economic value. It is the job of an actuary to calculate that value. Clients are often shocked to realize that their pension interest, in terms of present dollars, totals several hundred thousand dollars.

If the pension interest was accumulated during the marriage, it is subject to equal division. This may be done by a cash off-set or an award of future benefits to each party. If the cash buy-out is contemplated, then we must know the present value of the benefit. An actuary typically charges a couple hundred dollars for their services.

If custody is a contested issue in your case, a custody evaluator will be appointed by the court. This individual typically possesses a degree in psychology or social work. The custody evaluator will meet with each party individually, and meet with them in the presence of the children. They will gather documentation such as medical and school records involving the children. Custody experts often speak with counselors that might be involved with the family. Parents will often refer the evaluator to several acquaintances who can speak of their ability to affectively parent the children.

The process of completing a custody evaluation typically takes several months. Once all of the necessary information is gathered by the evaluator, a report is generated that addresses the information gathered in relation to the standard for an award of custody in Minnesota – the best interest of the child. These reports are often twenty (20) or thirty (30) pages in length and may include painstaking detail about the family situation. The final part of the evaluator’s report includes a series of recommendations. Most often, the court will adopt the recommendations of the evaluator.

There are two types of custody evaluators in Minnesota: court appointed and privately retained. There is no legal distinction between the two, but a private evaluator will typically charge more than $10,000 for their services. In some situations, a private custody evaluation will be done much more quickly than an evaluation conducted by court services. If court services performs the evaluation they, too, charge a fee. But it is typically much less than the fee associated with a private evaluation. 

We frequently employ business appraisers to ascertain the present value of a business owned by one or both of the parties to a divorce. There are a number of ways that a business appraiser calculates the market value of a particular business. The evaluator will look at the overall business revenue, profits, assets and marketability of the business.

The cost for a particular appraisal varies depending upon the nature of the business being valued. In most situations, a business appraisal will cost between $5,000 and $10,000. Once the appraisal is concluded, the evaluator will present a written report. The report will include the various formulas utilized for determining market value and offer an expert opinion concerning the value of the business based upon dozens of factors that have been taken into account.

In cases involving spousal maintenance, we often employ a vocational assessor. This individual is asked to evaluate a spouse’s capacity for employment and potential annual earnings based upon their educational background, skills and the market place. The person being evaluated will be asked to spend the day with the vocational assessor. An interview takes place and the individual is asked to complete a series of psychological tests, including the MMPI and other skills tests.

Once the evaluator has opportunity to get to know the individual, they will generate a report that discusses the skills and abilities of the individual, along with a host of potential careers that are available to them. The assessor we retain will take into account market conditions specific to the Minneapolis area. A vocational assessment typically costs approximately $1,500. The conclusions drawn by the assessor provide significant evidence for the court to consider in light of a request for spousal maintenance.

The foregoing experts are the most frequently retained individuals to assist our clients through the divorce process. Certainly there are others, such as vehicle appraisers, psychological experts, chemical abuse experts, accountants and others. The costs associated with retaining many experts is substantial. For that reason, we work very closely with our clients to balance the costs of the involvement of an expert against the benefit that we hope to realize in retaining that individual.