Archives: Custody

There are two type of custody under Minnesota law: (1) physical custody; and (2) legal custody. Physical custody involves the day to day care of a child, while legal custody involves key decisions concerning a child's education, healthcare and religion. The "best interest of the child" standard applies.

Perhaps you just received a transfer offer to another state from your employer with a significant pay raise and even more opportunities for advancement. Or maybe you and a business partner (or new boyfriend or girlfriend) want to leave the area for a change of pace. But if you are divorced, and you have joint custody of your child, what should you do? How will leaving Minnesota affect your child custody arrangements?

In Minnesota, the courts do not let a parent leave the state unless the other parent gives his or her permission. However, you might obtain a court order that permits the move. When a parent submits a request to move, the court will consider numerous factors before granting permission, such as:

•    Financial concerns;
•    Whether the moving parent is the primary caregiver;
•    The reason for relocating, especially if the purpose of the move is to hinder the child’s relationship with the other parent;
•    How the move will affect the child, including his or her age, medical needs, and education and special needs;
•    What the child wants, depending on his or her age;
•    The distance of the move;
•    Whether the move will enhance the quality of life for the parent and the child;
•    The child’s overall welfare and safety;
•    The status of the parent’s relationship with his or her son or daughter; and
•    Whether the parent will be able to continue that relationship out-of-state and under what circumstances.

The parent who wants to move must prove that his or her reasons are in the best interests of the child. Failing to adhere to these guidelines could justify an immediate order changing parental custody until the court schedules a hearing. All that said, if the parent is leaving due to domestic violence, then the burden of proof to prohibit the move falls on the opposing parent.

The parent who leaves will need to be willing to adjust the visitation schedule to accommodate the move as well as subsidize additional transportation costs. However, the judge will generally place a high priority on the child’s need for regular contact with both parents.

Maybe you just separated from your spouse, and you’re confused about how to share custody this Thanksgiving. Or perhaps you suspect the other parent has violated your custody arrangement by planning a trip to his or her parents’ home for the holiday. In either case, you’re feeling stressed out and confused about how to react.

Thanksgiving sparks challenges for many families, even those not embroiled in child custody disputes. With good planning, however, you can create a fun experience for your children and enjoy the holiday. Ideally, you want to extend this sense of grace and gratitude. As Robert Caspar Lintner once observed, “Thanksgiving was never meant to be shut up in a single day.”

Here are four strategies.

  1. Be creative and flexible with your calendaring

Holidays notoriously spur calendar fights, even among the happily married. Grandparents, for instance, famously jockey over who gets to see the grandkids, when, and under what circumstances. Fortunately, you’re not helpless. Here’s how to calendar better:

  • Review your custody arrangement. What is required of you and of the other parent? Knowing these ground rules helps you negotiate. Speak with your attorney if you’re confused or unsure of the rules.
  • Reach out. If you’re on good terms, meet with the other parent (in person or virtually) to negotiate scheduling concerns.
  • Use scheduling apps to stay organized and in communication.
  • Be empathetic. Focus on the other parent’s feelings and needs. What does he or she want, and why? By attending to what’s motivating the other person, you’ll be a better negotiator.
  • Look for win-win solutions. There’s only so much time in a day. Still, you can “expand the pie.” Maybe, for instance, you let your ex take the kids for Thanksgiving in exchange for a special vacation “weekend with dad” in January.
  1. Identify and meet your needs.

Parents struggling with custody often neglect self-care. Don’t! Remember the “airplane rule” for parents – you must put on your own oxygen mask before you help your child with his or hers. Spend a day at the spa de-stressing with massages and facials, or plan a night out with friends in town for the holidays. Children benefit when their parents are healthier and less stressed, so don’t feel guilty about taking time to take care of yourself.

  1. Be positive and expect the unexpected.

No matter how much effort you put into planning for the holidays, there’s only so some control you have. As President Einsenhower famously said: “In preparing for battle I have always found that plans are useless.”

The unexpected is okay. If you burn the turkey, laugh about it and make the holiday memorable by ordering Chinese instead. If your co-parent changes plans on you last-minute, try to see it as an opportunity to celebrate Thanksgiving twice—start a new family tradition called “Thanks Again”!

  1. Maintain a support system.

When dealing with a custody dispute or tough divorce, it’s natural to feel lonely, even despondent, over the holidays. Surround yourself with people who love and encourage you. Get help with your parenting responsibilities. Recruit your older kids to pitch in.

In recent months, the legislature passed (and the governor signed into a law) a bill that amends Minnesota’s custody standards. In addition to a revised “best interest of the child” standard, judges must now apply the relevant statutory criteria with nine new provisions to guide them:

Detailed Findings

The court must make detailed findings on each of the [best interest factors] based on the evidence presented and explain how each factor led to its conclusions and to the determination of custody and parenting time. The court may not use one factor to the exclusion of all others, and the court shall consider that the factors may be interrelated.

Both Parents

The court shall consider that it is in the best interests of the child to promote the child’s healthy growth and development through safe, stable, nurturing relationships between a child and both parents.

Diversity

The court shall consider both parents as having the capacity to develop and sustain nurturing relationships with their children unless there are substantial reasons to believe otherwise. In assessing whether parents are capable of sustaining nurturing relationships with their children, the court shall recognize that there are many ways that parents can respond to a child’s needs with sensitivity and provide the child love and guidance, and these may differ between parents and among cultures.

Misconduct

The court shall not consider conduct of a party that does not affect the party’s relationship with the child.

Disability

Disability, alone, of a proposed custodian or the child shall not be determinative of the custody of the child.

False Abuse Claims

The court shall consider evidence of a false allegation of child abuse in determining the best interests of the child.

Presumption

There is no presumption for or against joint physical custody, except as outlined below.

Division of Time

Joint physical custody does not require an absolutely equal division of time.

Domestic Abuse

The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child. However, the court shall use a rebuttable presumption that joint legal custody or joint physical custody is not in the best interests of the child if domestic abuse, as defined by law, has occurred between the parents. In determining whether the presumption is rebutted, the court shall consider the nature and context of the domestic abuse and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs. Disagreement alone over whether to grant sole or joint custody does not constitute an inability of parents to cooperate in the rearing of their children.

The phrase “custody” is used to describe the obligations, and rights, of parents regarding the care of their children.

Child custody issues come about when an unmarried couple has a child together, or when married parents get a divorce.

The two types of child custody in Minnesota are physical custody and legal custody.

Legal custody involves a parent being able to make decisions regarding the child’s upbringing and well-being (religion, education and healthcare).

Physical custody is the type of custody that a parent has when the children live primarily with them. It involves the day to day care of a child.

Parents can have joint legal custody, which means both parents have a say in the upbringing of the child. If there is a dispute, the court can intervene in order to settle the conflict.

With joint physical custody, children typically (but not always) split their time with both parents.

If a parent is awarded sole physical custody, the non-custodial parent will be granted visitation (now referred to as a more politically correct “parenting time” award). A schedule will be established. For instance, a child may live with dad, but visit mom on weekends.

In some cases, sole legal custody is granted, but those awards are rare (typically reserved for situations in which there is a history of domestic abuse among the litigants). When both parents are in the picture, the court prefers that they are equally involved in making important decisions for the child.

Child custody can be a controversial issue; it is common for both parents to want physical custody – or for one parent to seek sole custody over a joint custody arrangement.

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.

Modification of the physical custody of a child is one of the more difficult things to do in family court. Although we’ve successfully moved for modification many times, careful consideration is given as to whether the request should be brought in the first place.

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

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

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

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

In practice, the primary focus involves the endangerment element.

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

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

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

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

The Minnesota 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:

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.

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:

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.’

  1. 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.’
  2. 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.
  3. 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.
  4. 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
  5. 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.
  6. 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.
  7. 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.

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?

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.