Minneapolis Divorce Attorney & Lawyer : Minnesota Family Law Firm : Brown Law Offices : St. Paul, Twin Cities MN

About half the cases we handle are more contested divorces. These are marital dissolution cases in which the litigants don’t expect to reach agreement early and, instead, need the intervention of the court system in order to reach a resolution.

These divorces typically involve four distinct segments.

The first segment of work in a contested case involves the case workup. This is where we put together the initial pleadings in the case and serve and file them. You will complete an initial questionnaire and provide documentation to us so that we can adequately move forward and understand exactly what relief is sought.

Following the service of the summons and petition, we will participate in what’s called an initial case management conference. This is a first meeting with the judge, on an informal basis, to talk about the issues that are in controversy. The court, at that point, might refer the matter for an early neutral evaluation. This is a process where the parties can meet with a court-appointed expert and try to settle the case before becoming too entrenched.

If matters don’t resolve at the early neutral stage, then we move into the next phase - called discovery. This is a process where we’re going to gather information from your spouse. We may do so formally, or informally.

In addition, we may elect to schedule a motion for temporary relief. This is a hearing in which the court will make a determination, on a temporary basis, of who is going to reside in the homestead, who is going to have temporary custody of the children, and what sort of temporary alimony, or child support awards, are appropriate. Quite often cases will settle following the entry of a temporary order, because the parties have a preview into how the judge views the facts of the case.

However, if the case has to continue, we will position your case for the settlement stage. We’re going to attempt to work out matters either through mediation, or some other form of alternative dispute resolution.

If we’re not able to work it out, the court will call us back in, and we will participate in a pre-trial conference, where we’re going to try one last time to get the case settled, with the assistance of the judge.

The fourth phase involves preparation for and actually trying the case. The judge has 90 days to issue a written decision following the end of the trial, and if either party is dissatisfied with the outcome, they have an additional 60 days in which to file an appeal.

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Thanks to Mark Pfenning, a divorce lawyer and author who has published many articles geared toward helping parties through the divorce process. His recent article, Divorce Courtroom Tips, provides some helpful strategies and a useful summary of the basic rules of decorum in family court. Here's what Mark has to say:

1. Settle Some Things. This means the judge won't be in control of everything.
2. Expect Unfavorable Decisions. There are three directions the judge can go when making a decision: Your way, your spouse's way, or the Judge's way. As you can see, two out three are not in your favor.
3. Let Your Divorce Attorney Do the Talking. Do not speak unless asked to do so by the Judge.
4. Respect is an Absolute. When addressing the Judge with respect by addressing him/her as "Your Honor."
5. Don't Address Your Spouse. Never speak to or make comments to your spouse when you are before the Judge.
6. Check Your Emotions at the Door. Do not make faces or gestures when the judge or your spouse's attorney is speaking. Judges see this and do not appreciate it.
7. Dress for the Occasion. Your attorney will have a certain strategy on how he/she wants you to be portrayed. Therefore, consult your attorney on how he/she wants you to dress.
8. Write. Don't leave anything to chance. Your attorney will be very busy during the process and cannot remember or write everything down.
9. Come Prepared. Bring as much information, documentation and any pertinent documents that you possibly can with you. It is better to have too much ammunition than not enough.
10. Be Ready to Wait. You will sometimes wait for hours before your case is called.

Good suggestions. I would also suggest leaving all digital devices in the car. I recall a lawyer whose cell phone rang in the middle of his intense cross examination of my client in a recent trial. The more memorable impression was the expression on the judge's face.  

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"A good therapist is less expensive than a good lawyer." I've uttered those words to many clients. 

Yes. I try to help clients gain some perspective about the dissolution process, and their feelings. I'm not heartless. I want to be there for them. But, at the end of the day, the honest truth is that my ability to provide professional advice on the emotional component of divorce is limited.

Robert Mues, divorce lawyer and editor of the Ohio Family Law Blog, recently collaborated with Donna Ferber, noted psychotherapist, and "switched roles" to discuss the importance of each other's role during the divorce process.

Attorney Mues writes:

The therapist is not trained in the law, and I am not trained in psychology. We each have distinctly different roles. A good therapist can help a client deal with all the changes in a relationship that are affected by divorce—children, parents, extended family, in-laws, and friends.  The therapist can help the client figure out priorities for the future, deal with anger issues, or help clarify why a person has quit advocating for themselves. Also, therapists can help prepare a client for Court through role playing. The therapist will work with the client to design a plan individually tailored to the emotional needs of the client.  Often times this is different from “marriage counseling."  

Therapist Ferber offers the following tips:

1. Just because your friend had a good experience with an attorney doesn’t mean they are the right one for you. Trust your gut.
2. Pick a specialist. While they may be more expensive per hour, they have more experience and in the long run will be both cost and time effective.
3. Aggression doesn’t insure a “win”. An overly aggressive attorney may fan the flames of conflict rather than move toward resolution.
4. Pick an attorney who understands this isn’t about “winning”. She/He should understand divorce is about a major change in the family and that more than the “bottom line” will be affected. A good family attorney is willing, when necessary to work with your therapist. He/she is focused on the family’s post divorce situation and understands the interconnectedness of the family does not end with the dissolution of the marriage. In short, they can see the “big picture”.
5. A consultation is like a first date, what you see is probably what you get. Don’t pick someone who minimizes your concerns, is sarcastic or dismissive. Don’t ignore your own radar by dismissing his/her behavior in favor of excellent credentials.
6. Don’t use your attorney as a therapist. And don’t use your therapy time to talk about legal issues. Efficient utilization of your professionals will keep costs down, provide you with better information and effective support.
7. Don’t withhold information from your attorney because you are embarrassed. They aren’t there to judge you, but if you don’t give them the information they need, you cut down on their ability to effectively represent you. Don’t assume drinking, abuse or affairs are not relevant even if you live in a “no fault” state. Underreporting or minimizing can result in your not getting the best settlement. ALWAYS tell your attorney if there are weapons in your home.
8. Try to stick with the facts. The emotions get processed with your therapist.
9. Talk frankly about costs up front and what you will be charged for.
10. Finally, be clear the court is not going to reward you for pain and suffering. Settlements aren’t based on how betrayed or rejected you feel. Keeping an objective attitude regarding the legal system can play a big part in keeping your expectations realistic.

Thank you both for your perspective.

There are other professionals we often refer clients to, including financial planners, mediators, parenting consultants, realtors, mortgage brokers and auto dealers to help with getting life back on track. Each has a unique role to play during this time of transition. It really does pay to find someone who is compassionate and understands your needs following a breakdown of your marriage. Perhaps at some point we can post insight from these folks as well.

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The Minnesota Guardian Ad Litem Program provides advocates who represent the best interests of abused and neglected children in court. They play a pivotal investigative role in protective services cases, and other situations involving allegations of endangerment of a child.

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.

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HF69 has been introduced by Rep Steve Drazkowski. It creates a strong presumption of equal parenting time and joint physical custody. The Listserv for the Family Law Section of the Minnesota State Bar Association was on fire today, with input from attorneys from around the state. 

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. 

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The lawyers with Thyden, Gross & Callahan, LLP, authors of the Maryland Divorce Legal Crier, recently published an article entitled "Putting the Fault Back into No-Fault Divorce." They point out that despite the fact that several states on the east coast have moved (like Minnesota in the 1970's) to "no-fault" divorce, fault still creeps into the mix.

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.

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In this episode of The Family Law Show, Jason Brown outlines the four ways in which the Court may conclude a divorce in Minnesota. 

Whether your case is contested, uncontested, settled, or requires a trial, certain procedural requirements must be met in order for the Court to execute a divorce decree.

Topics addressed in this pocast include include pure default hearings, default hearings by agreement, in-chambers review and matters addressed by the Court following a trial.

Run Time: 14:01

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Ontario divorce attorney Brian Galbraith brought a new website to my attention today: Changeville. You might be thinking Obama, but this new resource is available to children whose parents who are going through a divorce.

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?

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The Family Law Show returns, with a summary of the issues involved in obtaining, or defending against, an Order for Protection or Harassment Restraining Order. 

The conduct giving rise to either Order may impact litigants in three types of cases: a civil case, a family case and a criminal case - often concurrently.

Topics discussed in this podcast include Minnesota's Domestic Abuse Act, the impact an OFP or Restraining Order may have in family court, the standards and procedures involved in obtaining an Order for Protection, the standards and procedures involved in obtaining a Harassment Restraining Order and the criminal consequences that may stem from violating either type of Order.

Run Time: 15:13

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The pilot family mediation project of the Minnesota Court of Appeals appears headed toward becoming a permanent component of the appellate process in Minnesota.

Two years ago, the Court of Appeals began experimenting with voluntary participation in mediation immediately following the filing of an appeal. Most, including myself, were skeptical. Mediation has traditionally involved negotiation prior to trial, not after. Trial typically leaves the litigants even further at odds with one another, with litigants on appeal considered the most conflicted.

However, the Court reports that since inception, the pilot program has resulted in a 52% settlement success rate. I find that astonishing, given the temperment of those participating in an appeal.

As many have commented, it appears family court litigants continue to appreciate an opportunity to "take the law into their own hands" and control the outcome of their dispute. I say that because of the exploding trend toward early settlement of divorce cases through early neutral evaluation. Some counties report 80% of divorce cases settling through ENE.

Last week, I heard grumblings from a court administrator that some lawyers are flustered by the settlement rates. What a shame. I suspect attorneys who work at firms with billable quotas can't stand the idea of losing out on an opportunity to bill hours for the flurry of letters, phone calls, hearings and trials that necessarily accompany conflict-loaded cases.

This appears to be a win-win-win. The courts? Fewer resources needed in family court. The clients? Less cost, less turmoil, more control. The lawyers? A more rewarding, productive practice model.

The keys to success in early resolution, in my mind, are two-fold. You need to find a lawyer with two seemingly competing characteristics: (1) a reputation for success in the courtroom; and (2) a sincere desire to settle matters early. We find that cases tend to settle early when the opposing attorney knows we aren't afraid to (capably) try cases. But, our goal for every client is to litigate only when absolutely necessary. That combination has worked well for those we represent.

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The latest installment of The Family Law Show is ready for your inspection: "Two Years of Litigation in Ten Minutes." We provide a brief overview of how divorce cases are litigated.

The vast majority of the cases we handle settle short of trial. But, even in those situations, the litigants should understand how the process unfolds.

Topics addressed in this podcast include the difference between a contested and uncontested divorce, the initial case workup, service of the summons and petition, temporary motions, mediation, pre-trial conferences, discovery, experts, trials and appeals.

Run Time: 10:52

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Janet Langjahr, a divorce and family lawyer who authors the Florida Divorce Law Blog recently cited an article in the Northwest Florida Daily News about a 12-year-old girl arrested for assaulting her father. The cause of her anger? Dad was trying to force her to be with him during court ordered parenting time. Not sure who was in the wrong...dad for forcing or daughter for striking.

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.

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Some parents choose to use their child as a weapon during divorce. Experts agree, it will inevitably come back to haunt the parent who does so - and might just destroy a kid's well-being.

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.

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Who would believe an instant camera to lead to so much conflict? Noeleen Walder of the New York Law Journal recently authored an article entitled "Divorcing Couple Hits Snag Over Splitting 7,000 Family Photos." Walder writes:

When M.R. and E.R. decided to call it quits after more than 20 years of marriage, they had no trouble agreeing on how to split the marital home or how to handle custody of their children. But when it came to figuring out how to divide more than 7,000 photographs, the picture got blurrier.

...after spending more than $2,100 to scan the photos onto a disc, the quality of the reproductions became a bone of contention. The judge attempted to broker an agreement, but the parties maintained what he called their "intractable and opposite positions."

At a hearing last week, during which both parties appeared pro se, the husband testified "in great detail about his meticulous cataloging of photographs," which he equated with the hobby of collecting rare books.

He characterized his wife's involvement in the process as "limited" and "antagonistic," and said he believed she was fighting over the albums for vindictive, rather than sentimental, reasons.

The wife testified that she had some involvement in compiling the photos and said that several of those that were copied contained imperfections.

The judge ultimately awarded the husband 75% of the original photos and said:

The method of selection shall be in a manner agreed to by the parties or the selection process shall be as follows: starting with the first album, the Wife shall, counting from the first page thereof, be entitled to receive every fourth original photograph in that album.

Whether the division of a set of porcelain cougars, Nascar paraphernalia or beer mugs from Norway, we've been involved in a good number of disputes similar to the one reported by Walder. And they drive judges nuts. It's an interesting study in human nature. To witness the sentimental value clients attach to things that, to the general public, are basically worthless. I get it, through. I've got a treasured lamp from my mom's side of the family and a cool wooden candy dish from my dad's parents. Photos are no different.

I often tell clients that their spouse knows better than anyone how to push their buttons. Unfortunately, a lot of button-pushing goes on during litigation. If you find yourself in the early stages of divorce, you may still have the ability to prevent problems later. My suggestion? Box your treasures up and get it out of the house...right now. Take them to your lawyer's office, or leave it with a trusted friend or family member. You can't sell them, but you can "store" things until the divorce is final. I'm willing to bet your spouse will forget about your Gumby clock altogether.

As to family photos and videos? This couple seemed to have it right at the onset. But, courts typically order the parties to split the cost of reproducing everything and dividing the originals equally. Looks like husband scored a victory.

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Eric Solotoff, a certified matrimonial lawyer based in Roseland, New Jersey, recently featured an article from the Daily Record surrounding a post-decree parenting time dispute between a mother and father. Here's how ugly (and downright silly) things can get sometimes:

Ruling against a divorced father's wish that his daughter help him celebrate his birthday, a judge in Morristown Thursday said the child should have the rare chance to spend that time as a bridesmaid at her godmother's wedding.

Mother Cortney Hooper of Dover took her ex-husband, Steven Miller, to Superior Court to have a judge decide how their 10-year-old daughter should spend Friday night, even though it encroaches on Miller's visitation time.

Though Miller and his lawyer, Jamie Berger, argued that this weekend belonged to Miller and that his family planned a Friday night celebration for his 35th birthday, Superior Court Judge Mary Gibbons Whipple said she believed the little girl should have the experience of wearing a special dress and shoes and eating the cake and hearing wedding music.

 Saying she didn't mean to diminish the importance of a child celebrating a birthday with a party, Whipple nonetheless said the wedding experience — and accompanying her bridesmaid mother down the aisle — would be unforgettable for a little girl.

Addressing Miller directly, the judge asked: "Do you really want to say 'no dress, no cake, no wedding, no bridesmaid, no band? You have to go to my birthday party.' Do you really want to take that away from her?"

Miller said he hadn't asked his daughter her preference, but that his time with her is precious and his family will be heartbroken that she won't be present at his party. Miller did get to see his daughter on his actual birthday, April 7, but the party was planned for Friday.

"A birthday party happens every year. A wedding is once-in-a-lifetime," Whipple said.

Read Solotoff's post here. Find the full article cited by Solotoff here. The more entertaining part of this are the comments read by paper readers. Find them here.

What do you think?

Appears to me neither the mother, nor the father, hold all the blame. The lawyers representing them at the time of the divorce should have put language in their divorce decree to cover such a situation - especially if, as it seems, it was a high conflict case.

In the cases we handle, we include specific provisions relating to special days (such as holidays, birthdays and family events) that a child may experience. We also build in a hierarchy so there is no question about whose parenting time trumps whose. For example, "life events," such as a wedding or funeral, take priority over birthdays. Birthdays and holidays take priority over vacation time. Vacation time takes priority over routine access time. Cut and dry.

Of course, the pessimist will ask, "What if you have a funeral and a wedding on the day?" Our clients typically agree to language that requires them to defer to a parenting time expeditor. A parenting time expeditor is a neutral professional who is given authority by the court, and parties, to make parenting time decisions that are consistent with a divorce decree. If either party dislikes the decision, they have a right to appeal to the district court.

The Minnesota statute concerning the appointment of a parenting time expeditor may be found here.

Here are some key things to keep in mind about parenting time expeditors:

• Parenting time expeditors are not required to be utilized, but courts strongly encourage them.
• The benefits in using a parenting time expeditor include prompt attention to a particular conflict (immediate, instead of six weeks, or more, to see a judge) and the avoidance of attorney's fees and court costs.
• Parenting time expeditors are usually an experienced matrimonial lawyer or former social worker or custody evaluator.
• The parties usually split the cost associated with the expeditor, and give the expeditor the authority to allocate costs based upon the reasonableness of the parties to a particular dispute.
• Parenting time expeditors have their own special retainer agreements and will often require a retainer fee placed into a trust account in order to render services.

Even if the parties haven't agreed to use a parenting time expeditor, or have agreed but haven't named one in their divorce decree, some of the best expeditors our clients have worked with include: Kim Brandell, Andrea Niemi, Carol Vander Kooi and Elizabeth Shading. Each have a little different style and are worth considering.

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The Domestic Abuse Committee of the Family Law Section of the Minnesota State Bar Association has published a new resource for domestic abuse victims entitled "A Domestic Violence Victim's Guide to Getting a Good Attorney." With the permission of the State Bar Association, here is what the Committee has to say:

Should I get an attorney?

Choosing an attorney is perhaps the most important decision you will make. Going through any court process alone without an attorney can be very difficult. The law and the rules of court can be very complicated.

You are likely dealing with upsetting facts that may make handling a legal process even harder. Many times the advice and/or representation of an experienced attorney may make the difference between a good and bad outcome.

Decisions made by a court can be permanent or very hard to change. Even though hiring an attorney now might seem like more than you can afford, failing to get legal advice may mean you do not get the financial support you need and deserve.

Note that even if you have a domestic abuse advocate, you should still consult an attorney, because attorneys and advocates serve very different roles. It is also a very good idea to have a domestic abuse advocate working with you and your lawyer.

Some people may be able to go ahead without an attorney in cases like Orders for Protection. But even if you think that you can handle the court hearing by yourself, discussing your case with an attorney may help you decide whether to hire an attorney.

There are circumstances under which you may especially need a lawyer:

• Legal papers have been served on you;
• An agency has taken (or has threatened to take) your children;
• Confronting the abuser in the courtroom or otherwise is unsafe or intimidating;
• The other side has a lawyer;
• You or the abuser are immigrants or may have immigration-related problems or complications;
• You may face eviction or lose your job because of the actions of the abuser;
• You and the abuser live in separate states or one of you is on a reservation or in the military;
• Your case involves property, financial issues, or child custody;
• The legal issues involved are confusing;
• You operate a business out of your home;
• The legal matter is only one of the difficult issues you have to deal with at this point in time
  and you need somebody to take it over; and
• Losing would drastically change your life.

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Minnesota Lawyer recently featured an article by Sylvia Hseih entitled Divorce Attorneys are Missing Evidence on Social Media Sites. She reports that sites such as Facebook and Twitter contain a "treasure trove" of legal evidence - especially in divorce cases. She writes, however, that most lawyers are missing the boat.

Hseih points out that damaging messages and compelling photos can quickly lead a case to settlement if discovered and presented early.

Citing the "adultery discovery," Hseih suggests that a suspicious spouse may be armed with damaging information to bring in to court. Keep in mind, however, that Minnesota is a no-fault divorce state. Whether you or your spouse are faithful to one another isn't relevant under our divorce statutes (Hseih's article first appeared in a national publication).

There are other highly relevant uses for this information, however. Here are a few examples referenced by Hseih:

• Confessions involving an individuals social life;
• Photos with children in places they ought not be;
• Photos of parties to the case consuming liquor or using drugs;
• Income and employment information; or
• Inappropriate sexual content

Hseih recommends looking both ways, urging lawyers to speak with their clients about the types of social networks they post on, limiting the information they provide and increasing access security to prevent their spouse from tapping in.

I encourage anyone going through a divorce to modify all of their passwords to prevent a spouse from creating a false profile or modifying information on the social sites in an attempt to cast  you in a negative light. It wasn't that long ago that a client pulled up her MySpace page to find that she was already "single" and a "swinger." Of course, her husband denied making those changes and tried to hold it against her in court. Wasn't successful, but I guess he deserves an "A" for creativity - not to mention fabricating evidence.

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Acts of domestic abuse that occur during a marriage can have a substantial impact on custody proceedings.  A finding of domestic abuse can prohibit parties from sharing joint physical custody of their children.

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.

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In an unpublished decision entitled In re the Matter and Welfare of the Child of  BTN and AVD, the Minnesota Court of Appeals reversed a district court order terminating the parental rights of the child's parents. Judge Bjorkman wrote without dissent.

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?

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Do the right thing...even when no one is looking. Great advice from Greg Cook, one of the top private investigators in the country (and, thankfully, stationed right here in the Twin Cities). Greg and I had lunch the other day and engaged in a long discussion about the uses of a private investigator in family law cases despite the fact that Minnesota is a no-fault divorce state.

In terms of property issues, some spouses falsely assume that they can hide assets from the other. Divorce fraud is perpetrated when one party fails to inform the other party of all assets one owns. All searches conducted by Greg and his staff abide by laws and regulations set forth in the Fair Credit Reporting Act, The Fair Debt Collections Practice Act, and the Gramm-Leach-Bliley Act (GLBA). Despite these hoops, they are able to locate bank accounts, cars, homes, boats, business interests, securities and any other tangible property interests held by your spouse.

Individuals asked to pay alimony often under report their income - in an attempt to persuade the court to believe that they don't make enough money to afford to pay. Similarly, a spouse seeking alimony may also under report their income - in an attempt to persuade the court to believe that they don't make enough money to meet their monthly expenses. Investigative methods can prove whether a subject has a place of employment not being reported or there is co-habitation involved (which could decrease alimony and monetary support decisions made by a court based on reduced financial need in your spouse).

Infidelity may be proven through surveillance. Keep in mind, the act of cheating is not a basis to seek a disproportionate award of marital property or custody of your kids. However, much can be learned about a person by knowing the company they keep. Does your spouse's lover have a criminal record? Are your children being neglected while your spouse is out with someone else? If the children form a relationship with this person, what sort of home environment will they be subjected to? Answers to these questions are relevant to the court in determining what is in the best interest of your kids. 

In addition to information relating to your spouse, investigators can help with trial preparation in the form of locating and interviewing witnesses, conducting public record searches, service of process, paternity testing and other background investigations concerning individuals associated with a case.

Our firm has retained Greg in numerous cases and the results are always amazing. He consistently provides us with reliable information that might otherwise have taken months to uncover - if we were ever able to recover it at all.

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The Ohio Divorce Attorneys with Holzfaster, Cecil, McKnight & Mues author the popular Ohio Divorce & Family Law Blog. They recently posted a useful article entitled "What is Parental Alienation and Parental Alienation Syndrome?"

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.

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If you and your spouse cannot reach agreement on the legal and physical custody of your child, your matter is probably headed for trial. The court will be left to determine what is in the "best interests" of your child through the use of a custody evaluation and report. About 95% of the time, the court will adopt the evaluator's recommendations - unless you have a strong advocate who knows how to challenge their conclusions.

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.  

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Cristi Trusler, author of the Austin Divorce Help Blog recently published a no-holds-barred article outlining nine key strategies utilized by parties who want their divorce to be the worst possible experience of their life. Her post has received great attention in Family Law Blogs from around the country.

Humorous and to the point, here's what she suggests to litigants looking to make the dissolution of their marriage as lengthy, stressful and expensive as possible: 

1. Lie. It's critical that you and your attorney trust each other. So why not lie to them? That's really a great strategy.
2. Get your kids involved. Divorce is unpleasant enough on it's own. If you really get your kids involved and start using them against each other it's easy to make it much, much worse - on you and your kids. So go ahead, get a good custody battle going. Make your kids miserable. (If you pursue this strategy, I recommend saving money for therapy.)
3. Start dating immediately.  If you'd like to make your spouse even less willing to try to reach an agreement, then start dating - and make sure you tell them about it.
4. Raid the bank accounts. This is a great way to let everyone know that you are the "bad spouse." Cut your spouse off from all your assets and don't let them have any money to live or to hire an attorney.
5. Start making big purchases. Spend, spend, spend. This one does two things. First, it's just more stuff to try and divide during the divorce. Second, since money is often an issue in divorces in the first place, it can give you just a little bit more to argue about.
6. Don't do anything. If you really want to frustrate everyone, including your own lawyer, don't do anything. Don't call anyone back. Don't respond to emails or letters or show up for meetings.
7. Don't listen to your lawyer, get legal advice from your friends and family. This is a personal favorite of mine. I know you hired an attorney to guide you thought this legal matter, but he or she couldn't possibly know as much about the law as your aunt Dorothy who has been divorced 3 times.
8. Hire the most expensive attorney in town. There are some attorneys in town that won't even talk to you unless you can pay at least a $25,000 retainer. If you really want to nuke all your family's financial resources while fighting with your spouse, make sure you talk to one of these lawyers.
9. Hire the cheapest attorney in town. This is the opposite end of the spectrum. I was always taught that things were cheap for a reason.

We know (or at least hope) you're chuckling at the notion of taking Cristi up on these nine tips, but the temptation is probably there. A former colleague once told me that "divorces involve good people acting their worst and criminal defense involves bad people acting their best." I don't necessarily agree with his words of wisdom, but my memoir will have a number of anecdotes proving them true.

Source:  "How to Guarantee You'll Have a Divorce from Hell" by Cristi Trusler, published at her Austin Divorce Help blog.

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The Minnesota Judicial Branch has published an exceptional brochure entitled "From the Judges of Family Court: What to Expect...Divorce in Minnesota." In reviewing, it appears to serve as a "reality check" for the litigants. Much of it I endorse. Here is some of what the Court has to say:

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.

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Many of our clients are worried about the fact that they believe their spouse is hiding assets or won’t provide the information necessary to move a case along. The Minnesota Rules of Civil Procedure give divorce attorneys a series of tools that allow us to gather information in a number of ways, including:

• Interrogatories;
• Requests for Production of Documents;
• Requests for Admission;
• Depositions; and
• Subpoenas

The first tool that we utilize involves a series of written questions to your spouse. These are called interrogatories. Your spouse must provide us with written answers to all of our inquiries within thirty (30) days. The answers must be sworn to and signed before a notary. Interrogatories are an effective tool to use in gathering financial information.
 

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Depending upon the facts and legal issues involved in your divorce, a number of experts may play a role in your case, including a home appraiser, actuary, custody evaluator, business appraiser and vocational assessor.

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.

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A host of implications follow the issuance of an Order for Protection in Minnesota when a marital dissolution action is pending or will be filed:

Marriage dissolution petition. A petition for dissolution of marriage or legal separation must allege whether an OFP that governs the parties or a party and a minor child of the parties is in effect and, if so, the district court or similar jurisdiction in which it was entered.

Custody disputes. In a proceeding where two or more parties seek custody of a child, the court must consider and evaluate all relevant factors in determining the best interests of the child. One of the relevant factors set forth in Minnesota law is the effect on the child of the actions of abuse that has occurred between the parents or the parties. When joint legal or physical custody is contemplated, the court must consider whether domestic abuse has occurred between the parents. If domestic abuse has occurred between the parents, the court must apply a rebuttable presumption that joint legal or physical custody is not in the best interests of the child.

Parenting plan. Upon the request of both parents, a parenting plan may be created in lieu of an order for child custody. A parenting plan must include a schedule of time each parent spends with the child, a designation of decision-making responsibilities, and a method of dispute resolution. The court may not require a parenting plan that provides for joint legal custody or the use of dispute resolution processes (other than the judicial process) if the court finds that either parent has engaged in acts of domestic abuse or child abuse. In determining custody, a court must consider a finding under the Domestic Abuse Act or under a similar law of another state that domestic abuse has occurred between the parties.

Parenting time. Upon the request of either parent, the court must grant parenting time on behalf of the child and parent to enable them to maintain a parent-child relationship that will be in the best interests of the child. If the court finds, however, after a hearing, that parenting time is likely to endanger the child’s physical or emotional health or impair the child’s emotional development, the court must restrict parenting time and may deny parenting time entirely, if the circumstances warrant. If a parent requests supervised parenting time and an OFP is in effect, the judge or judicial officer must consider the OFP in making a decision regarding parenting time.

Modification of parenting time. If a parent specifically alleges that parenting time places the parent or child in danger of harm, the court must hold a hearing at the earliest possible time to determine the need to modify the order granting parenting time. The court must modify an order granting or denying parenting time whenever modification would serve the best interests of the child. Parenting time may not be restricted unless the parenting time is likely to endanger the child’s physical or emotional health or impair the child’s emotional development or the parent has chronically and unreasonably failed to comply with court-ordered parenting time.

Additional parenting time to provide child care. The court may allow additional parenting time to provide child care while the other parent is working, subject to reasonableness and the best interests of the child. In making this determination, the court must consider whether domestic abuse has occurred between the parties.

Move to another state. If a parenting-time order is in effect, the court must look at the effect of domestic abuse on the safety and welfare of the child and the parent when considering a request from a parent to move a child to another state. The burden of proof is upon the parent requesting the move, except that if the court finds that the person requesting the move is a victim of domestic violence, the burden of proof is on the parent opposing the move.

Custody and parenting time of children to unmarried persons. A proceeding by a father whose paternity has been recognized under Minnesota law to petition for rights of parenting time or custody may not be combined with a proceeding under the Domestic Abuse Act. Also, a petition by certain other individuals (e.g., grandparents or a person with whom a child has resided) for visitation rights may not be combined with a proceeding under the Domestic Abuse Act.

Participation in a parenting plan when a person is convicted of certain offenses. If a person seeking child custody or parenting time has been convicted of an applicable crime, the person seeking custody or parenting time has the burden to prove that custody or parenting time is in the best interests of the child. This provision applies if the conviction occurred within the preceding five years; the person currently is incarcerated, on probation or under supervised release for the offense; or the victim of the crime was a family or household member. In these cases, the court may not grant custody or parenting time to the person unless it finds that the custody or parenting time is in the best interests of the child. Also, if a person who has court-ordered custody of a child or parenting-time rights is convicted of an applicable crime and no action is pending regarding custody or parenting time, the sentencing court must refer the matter to the appropriate family court or action. The family court must:

• Grant temporary custody to the noncustodial parent, unless it finds that another custody arrangement is in the best interests of the child; or
• Suspend parenting-time rights, unless it finds that parenting time with the convicted person is in the best interests of the child.

Proceedings under this law must be expedited. The defendant has the burden of proving that continued custody or parenting time is in the best interests of the child. If the victim of the crime as a family or household member, the standard of proof is clear and convincing evidence.

Temporary orders and restraining orders. A temporary order in a proceeding brought for custody, dissolution, legal separation, or related matters may not vacate or modify an order granted under the Domestic Abuse Act restraining an abusing party from committing acts of domestic abuse. Upon proper motion the court may, however, hear a motion for modification of an OFP concurrently with a proceeding for dissolution of marriage.

Guardian ad litem. In all child custody, marriage dissolution, or legal separation proceedings in which custody or parenting time of a minor child is an issue, the court must appoint a guardian ad litem if the court has reason to believe that the minor child is a victim of domestic child abuse or neglect. The guardian ad litem must represent the interests of the child and provide advice to the  court on custody and parenting time.

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In a proceeding for an OFP under the Domestic Abuse Act, the court may provide the following relief, upon notice and hearing:

• Restrain the abusing party from committing acts of domestic abuse;
• Exclude the abusing party from the dwelling which the parties share or from the residence of the petitioner;
• Exclude the abusing party from a reasonable area surrounding the dwelling or residences
• Award temporary custody or establish temporary visitation with regard to minor children of the parties on a basis which gives primary consideration to the safety of the victim and the children;
• Establish temporary support for minor children or a spouse and order the withholding of support from the income of the person obligated to pay the support;
• Upon request of the petitioner, provide counseling or other social services for the parties, if married, or if there are minor children;
• Order the abusing party to participate in treatment or counseling services;
• Award temporary use and possession of property and make other orders regarding property;
• Exclude the abusing party from the place of employment of the petitioner or otherwise limit the abusing party’s access to the petitioner at the petitioner’s place of employment;
• Order the abusing party to pay restitution to the petitioner;
• Order the continuance of all currently available insurance coverage without change in coverage or beneficiary designation; or
• Order, in its discretion, other relief it deems necessary for the protection of a family or household member, including orders or directives to the sheriff or constable.

Relief that is granted by the order is for a fixed period of time, not to exceed one year, except when the court determines a longer fixed period is appropriate.

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Divorce is a stressful, significant occurrence in the life of all who are involved. The impact of divorce upon children cannot be ignored. Reputable divorce attorneys, and, more importantly, the Court, will put the interests of the children at  the top of the priority list.  Here are a few key points and suggestions to keep in mind as you move forward:

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 a judge with the information they 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. 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.

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Minnesota is a no-fault divorce state. A divorce will be granted in Minnesota without the necessity of proving that one of the parties is guilty of marital misconduct. In earlier times, a party to a divorce was required to demonstrate that the other spouse was at fault for causing a breakdown in the marriage. Adultory was by far the most common basis, but others included domestic abuse, abandonment and an inability to consumate the marriage.

Today, a party to a divorce in Minnesota must merely demonstrate that there has been an "irretrievable breakdown" in the marital relationship. One spouse must simply acknowledge as much, and the court will grant their request to dissolve the marriage. A relatively low threshold - and a tough pill to swallow for those who feel that there is no "justice" in their case unless the court takes into account marital misconduct.

Potential clients often ask, "Should I fight the divorce?" Yes, if you intend to do so outside of the legal arena through counseling or therapy. Once it is obvious that the marriage cannot be saved, your resistence should be limited to that which is necessary to obtain a favorable court order. Not wanting the divorce can be used as leverage against your spouse if they are anxious to conclude matters. Often, the impatient spouse will buy a quick resolution by making an extremely attractive settlement offer. This strategy should be balanced against overdoing it. If you are fighting the dissolution process out of anger or spite, you are likely to cause significant economic and emotional harm to you, your spouse and your children.

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