The disagreements can go on and on, and that means the court has to intervene with the custody evaluation process. A custody evaluator is appointed, or hired, to review the situation and create a report that the court uses to determine what is in the best interest of the minor child.

It is best to cooperate with the custody evaluator in every way possible. How you interact with the evaluator is going to carry a lot of weight in the evaluation - even though the relevant statute doesn't reference your conduct during the process.

Here are some things you should keep in mind when working with a custody evaluator:

• They will sometimes make you feel that they are on your side. This is so you will put your guard down. Never ever make the assumption that the evaluator is on your side.
• Keep in mind that they are human, and will react adversely to certain personalities. If you’re honest and open, then that is going to work in your favor.
• The custody evaluator doesn’t care about who the good guys and the bad guys are. It is what is best for the child that concerns them.
• Do not argue with the custody evaluator. You need to make eye contact and listen to them. You need to establish rapport with them, so it may help that you nod your head in acknowledgment of what they are saying. If you disagree, disagree nicely. You need to get your own points across so that they are considered.
• Provide the evaluator with all supporting documentation, and any other documents that may be requested. It is also important to provide these documents in a timely manner.
• If there are any collateral contacts, provide the evaluator with their names. These are individuals that are aware of your competence as a parent, and can vouch for the weak points of the other party.

About 95% of the time, the judge will adopt the recommendations of the custody evaluator. We've successfully tried many cases, however, in which we were able to discredit the opinion of the evaluator and gain an award of custody in favor of our client. Still, the odds are against if the report comes back in favor of your spouse. For obvious reasons, it is critical to have the custody evaluator on your side.

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.

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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.

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.

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.

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.

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.  

Here are eight tax tips to keep in mind as you move forward with your divorce:

1. Child Support. Child support is not income to the recipient and is not deductible for the payer. Keep this in mind if your spouse is seeking alimony. Child support payments that they receive are not taxable and, as a result, increase their net income each month dollar for dollar. As a result, the "need" of your spouse will be diminished and you may be able to argue that their imputed gross income exceeds their gross pay coupled with untaxed child support.
2. Alimony. Alimony is income to the recipient and is deductible for the payer. High income earners can reduce their taxable income by paying alimony. If your spouse's tax bracket is low, the government winds up picking up the tab for a good share of the alimony obligation.
3. Sale of Homestead. The sale of the marital homestead usually does not involve a taxable event. Capital gains (up to $500,000) from the sale of your marital homestead are not taxable if you've lived there for two of the last five years. Nor is a transfer of title to the residence, allowing your spouse to keep some or all of the equity. Many couples opt to forego alimony payments in, instead, pay a disproportionate property settlement to their spouse. In other words, they "buy off" alimony by giving a larger share of home sale proceeds, or equity, to their spouse. The result? No tax implications for either. Ideal for alimony recipients in a high tax bracket.
4. Filing Status. The status of your marriage on December 31 of the relevant year determines whether you file as single or married. If you are divorced by that date, you file as single for the entire year. If your case appears to be coming to a close near the end of the year, best to speak with a tax preparer about the consequence of holding up at bit or expediting matters. We find that courts are usually willing to facilitate bringing matters to a close by the end of the year if tax implications in doing so are substantial.
5. Dependents. While the law provides that the custodial parent is entitled to claim the relevant dependency exemptions, most couples agree to share them. Offering a non-custodial parent the right to claim the dependency exemption under the condition that their child support is current at the end of the relevant tax year provides them with incentive to keep current with payments.
6. Child Care Credit. Custodial parents who incur work-related child care costs can deduct up to 30% of the cost. It is for that reason that the child support guidelines usually require a custodial parent to assume responsibility for a greater share of daycare expense.
7. Liabilities and Refunds. Taxes owed, or refunds received, are usually treated as "marital" and are, therefore, split equally among the parties. In the heat of the moment, some spouses will intercept a tax refund and cash it without the other's knowledge. All funds must be accounted for and it is likely that if they do so their share of the final property settlement will be reduced proportionately. Because income is "marital," a tax liability is a shared responsibility.
8. Attorney Fees. Any fees paid to a lawyer for tax advice are deductible. Ask your attorney for to break out all billable time devoted to tax issues and you can save big.

Keep in mind, the Internal Revenue Code is constantly changing and you shouldn't rely on this post as the final word in your divorce tax planning.

If you involve a CPA in the team of professionals working on your case, they are sure to attack your situation from a unique perspective and offer creative ways to reduce your tax burden - leaving more money on the table for you and your spouse. Those extra funds may just be enough buffer to get your case settled.

Our argument to the court was that the grandparents had “stepped into the shoes” of the father, who was an admitted alcoholic. Despite the fact that the grandparents had spent substantial amounts of time with their grandkids, mom and dad disputed their continued involvement in the lives of the children and wanted all time spent with the grandparents to be supervised.

Our clients were awarded one full weekend a month with the grandkids and additional time to take their grandchildren on vacation. None of the time was required to be supervised. This award was quite substantial, given the fact that most non-custodial parents are typically ordered to receive two weekends per month of parenting time, along with one weekday evening. The court clearly recognized that the stability of the children was critical in this case and that this ongoing relationship served their best interests.

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.