Candid Advice From A Guardian Ad Litem

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.

Forced Parenting Time Results In Assault Against Dad: A No-Win Situation

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.

Podcast: Domestic Abuse & Harassment: Restraining Orders & Orders For Protection Under Minnesota Law

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

 

Family Law Section Of The Minnesota State Bar Association Publishes Information On Finding A Good Attorney

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.

What Steps Are Necessary To Secure An Order For Protection In Minnesota?

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.

How An Order For Protection Impacts A Divorce

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.

Consequences For Violating An Order For Protection In Minnesota

The violaton of an Order for Protection in Minnesota can yield a number of penalties for those who are found to have done so, including criminal penalties, civil contempt and firearm possession implications.

Criminal penalties. Minnesota law provides misdemeanor, gross misdemeanor, and felony penalties for a violation of an OFP issued under the Domestic Abuse Act or under a similar law of another state, the District of Columbia, tribal lands, or U.S. territories. In addition, any violation of an OFP constitutes contempt of court and is subject to the penalties for contempt. A known violation of an OFP is a misdemeanor. The penalty is a gross misdemeanor if the person knowingly violates an OFP within ten years of a previous qualified domestic violence-related offense conviction or adjudication of delinquency. The penalty is a five-year felony if the person knowingly violates the order within ten years of the first of two or more previous qualified domestic violence-related offense convictions or adjudications of delinquency. Felony penalties also apply to persons who commit the violation while possessing a dangerous weapon. The law provides minimum sentences upon misdemeanor, gross misdemeanor, and felony convictions. The law also requires the court to order the defendant to participate in counseling or other appropriate programs selected by the court.

Statement of obligation and bond. The court may require the respondent to acknowledge an obligation to comply with an OFP on the record if the court finds that (1) the respondent has violated an OFP, and (2) there is reason to believe that the respondent will commit a further violation of the provisions of the order restraining the respondent from committing acts of domestic abuse, or excluding the respondent from the petitioner’s residence. The court also may require the respondent to post a bond sufficient to deter the respondent from committing additional violations. If the respondent refuses to comply with an order to acknowledge the obligation or to post a bond, the court must commit the respondent to the county jail during the term of the OFP or until the respondent complies.

Order to show cause. The court may issue an order to the respondent requiring the respondent to appear and show cause within 14 days why the respondent should not be found in contempt of court and punished. This order may be issued upon the filing of an affidavit by the petitioner, a peace officer, or an interested party designated by the court, alleging that the respondent has violated an OFP.

New order to replace expired order. If an OFP has expired between the time of an alleged violation and the court’s hearing on the violation, the court may grant a new OFP based solely on the respondent’s alleged violation of a prior order, which is effective until the hearing on the alleged violation of the prior order. If the court finds that the respondent has violated the order, the court may extend the relief granted in the new OFP for a fixed period, not to exceed one year, except when the court determines that a longer fixed period is appropriate.

Firearm and/or pistol possession. No person who has been convicted of domestic assault in Minnesota or elsewhere or of violating a domestic abuse OFP may possess a pistol unless three years have elapsed since the date of conviction and, during that time, the person has not been convicted of any other assault crime or OFP violation.

Relief Available Under The Minnesota Domestic Abuse Act

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.