Minneapolis Family Attorney Blog

Father's probation sentence won't affect visitation hopes

2012-05-16T19:41:08Z

The Lakeville man who was convicted of gross misdemeanor child neglect in January for abandoning his 11-year-old son to head to California last summer, was sentenced to two years of probation on May 16. Outside of the criminal aspects of the case, the man's hopes to be granted visitation time with his son have not yet been granted, but the Dakota County District Court has not ruled it out either.

As we have discussed multiple times, the man crept out of the home he shared with his son on July 18, 2011 while the boy slept. He left behind a letter telling his son that he had left because he could not find work and that his mother, whom the father had previously claimed was dead, was actually alive. The boy later went to live with his aunt, a certified foster parent.

]]> More recently, the court granted child custody to the mother. The same day the father received his sentence, the family law court ruled that the boy was to move in with his mother effective immediately.

The father has spoken several times about his desire to see his son again but, except for a hearing last month in which both were in the same courthouse, the two have not been together since the father left the son behind. In the past, court-appointed psychologists have said that the father did not seem to realize the consequences of his actions. But at the sentencing hearing, the father said that he is sorry and realized that he "made a mistake" that day. The psychologists may eventually recommend visitation time between father and son.

Source: Minneapolis Star Tribune, "Lakeville dad who abandoned son gets 2 years probation," Jim Adams, May 16, 2012

Split child custody bill moves forward in Minnesota Legislature

2012-05-15T17:45:45Z

Though other bills have garnered more attention during this year's session of the Minnesota Legislature, lawmakers have debated a change in the law that could impact all future child custody disputes in the state. As we have discussed previously, some legislators want to insert a presumption in the law that would increase the guaranteed percentage of custody time each parent receives.

The initial bill would have required judges to begin with the assumption that each parent gets 45.1 percent of custody time and retain leeway to decide only the remaining 9.8 percent. Many similar bills in other states contain an exception for cases of domestic violence and other criminal issues. Current law requires a presumption of 25 percent to each parent, with the other 50 percent distributed according to the best interests of the child, unless the parents otherwise agree.

]]> Critics say that family courts tend to grant primary custody to mothers due to a bias against fathers. But opponents of a split custody presumption say that the idea is not workable for many divorced parents and seems to put the parents' interests interest above the children's.

As the 2012 legislative session nears the end, it appears that supporters are scaling back their proposal, likely to increase its chance of passage. An amended version of the House bill introduced by Rep. Peggy Scott, R-Andover, was approved in the Senate that would increase the presumed time each parent gets to 35 percent. That version, which would leave the remaining 30 percent up for negotiation or settlement, passed the Senate 46-19.

Though the more ambitious version passed the House in April, Scott said she was open to the Senate bill. However, it is possible that Gov. Mark Dayton would veto the bill if it came to his desk.

For Minnesota parents who are working on a child custody agreement or have in the past, is a joint custody presumption a good idea? Do you think it have helped or harmed your case?

Source: Minneapolis Star Tribune, "Child custody reform bill inching close to passage," Jeremy Olson, May 10, 2012

More men being awarded spousal maintenance

2012-05-10T21:32:55Z

Assumptions are changing as more mothers are paying child support and alimony than ever before. At least 56 percent of family law attorneys nationwide have noted an increase in mothers paying spousal maintenance during the recent years.

This reflects economic reality. Women on average make more money than they did 30 or 40 years ago and the mother is now likely to be making more money than the father.

]]> If the economic downturn continues, we may see even more a reflection of this trend. Though men on average still make more money than women, there have been as many men laid off during the recent recession as women. And whatever direction the economy takes, in the upcoming years we may see such circumstances where women have achieved income equality.

Under such circumstances, spousal maintenance and support is more likely to be awarded to men than in the past. Such support is often determined by the changed financial circumstances of each spouse and such circumstances are affecting each spouse rather evenly.

Family law in general is evolving. Fathers are taking a more active role in the raising of their children and are more likely to take time off from work to raise their children than has occurred in the past. Because of that fathers are more likely to be awarded child custody.

On a positive note, family law decisions are becoming less decided by stereotypical assumptions. Courts are now being forced to look at the individual circumstances of each family in making such decisions rather than making decisions based upon specific formulas.

Source: The Sacramento Bee, "More Women Paying Child Support and Alimony," May 8, 2012

Co-Parent Court helps Minneapolis parents raise child together

2012-05-07T18:40:52Z

Longtime readers of this family law blog may recall our Dec. 31, 2010 post. That day, we discussed an ongoing experiment being conducted in the Hennepin County Family Court called Co-Parent Court. As we said then, the idea of Co-Parent Court is to provide educational and other resources to unmarried parents to encourage them to share child custody despite obstacles such as poverty and interpersonal conflicts.

When it comes to unmarried parents, traditional family courts generally confine their business to establishing paternity and assigning child support to the parent who does not live with the child. As the Hennepin County judge who helped found Co-Parent Court explained, that approach leaves many parents unsure what to do to remain a presence in their child's life. Many fathers in that situation end up dropping away.

]]> That is where Co-Parent Court comes in. Parents who participate in the program attend four co-parenting sessions held at the courthouse. At the end of the course, they work out a parenting plan that covers sharing child custody, effectively communicating concerns and other issues. The court also connects parents with community resources for dealing with drug addiction, mental health issues, unemployment and other barriers to being a good parent.

Recently, Minnesota Public Radio sat in on a Co-Parent Court session. After the judge explained the program to a group of volunteer parents, some of the mothers gathered for a lunch hosted by two parent navigators who gave them advice on how to avoid conflict with their child's father.

With 40 percent of children in the U.S. being born to unmarried parents, the issue of keeping both parents involved beyond child support payments is a serious one in Minnesota and elsewhere.

Source: NPR, "Never-Married Parents Get Help From Special Court," Sasha Aslanian, May 7, 2012

Pet mediators help work out custody of Fido during divorce

2012-05-05T17:02:00Z

Readers may remember our April 4 blog post, in which we discussed how Minnesota law treats disputes over family pets that often arise during divorce. As in virtually all states, Minnesota considers dogs, cats and other animal companions to be chattel, or personal property. Thus, when spouses cannot agree on what to do with a pet, the judge is much more likely to grant ownership to one spouse or another than he or she is to work out a custody arrangement.

Divorcing spouses who have failed to come to an agreement on what to do with Mittens or Rex but are still willing to try to work out a compromise might consider using a pet mediator. Mediation is a form of alternative dispute resolution that parties in most civil law matters can turn to as a way of possibly avoiding a trial. Many mediators specialize in certain legal matters, and pet mediators are an example of this. While there may not be many pet mediators in the Twin Cities yet, it is a growing field that reflects people's desire not to lose contact with their pets after divorce.

]]> In one case, a couple's divorce settlement hit a snag when the husband decided he did not want his wife to keep their dog full-time. The wife's attorney had the couple attend a session with a pet mediator, who listened to each person's side of the dispute and repeated it to the other, perhaps so that each spouse could hear the other's feelings on the matter from an objective source.

In the end, the mediator persuaded the wife to agree to let the husband care for the dog during her vacation time, satisfying both sides.

The service is not cheap -- according to a news report, pet mediators typically charge $250 per hour and take a minimum of two hours to reach a settlement. And there is no guarantee that the mediator can help solve the dispute. But for divorcing "parents" of a beloved family pet, it could be an option to consider.

Source: The Wall Street Journal, "A Dog's Bark Is Better Than Litigation's Bite," Veronica Dagher, April 30, 2012

What is the legal impact of infidelity on divorce in Minnesota?

2012-05-03T18:55:44Z

You may not realize it, but adultery is a crime in Minnesota. It's on the books: Minn. Stat. § 609.36 states that a married woman found guilty of having sex with a man other than her husband can be put in jail for up to a year and fined $3,000. No mention is made of punishment for a man who has sex outside of marriage.

This criminal law is almost never enforced, but cheating can have an impact when a couple goes through divorce. This is especially true where the financial assets are divided through a negotiated settlement, as they are more than 90 percent of the time in Minnesota. The adultery, which is likely one of the chief reasons the divorce is happening, can hang over the negotiations like a fog. The spouse who committed adultery may feel embarrassed and could be quick to give up more assets than he or she ought to. Meanwhile, the other spouse is probably feeling angry and wants to use the property division to punish the cheating spouse.

]]> While these emotions are natural, it is important to do your best to be calm and rational when negotiating a settlement. That way, you will more likely to wind up with a settlement that is fair to you and your contributions to the marriage.

For divorces that wind up in court, the impact of adultery is fairly limited. Minnesota is a no fault divorce state, which means that the spouse who files for divorce need not prove that the other spouse committed some action to justify the dissolution of the marriage. However, in some states, evidence of an affair can cause the judge to reduce the amount of alimony the cheating spouse is seeking.

Source: Huffington Post, "Divorce Questions: How Does Adultery Affect A Divorce Case?" Katherine Eisold Miller, May 3, 2012

Abandoned child's mother a study in custody redemption

2012-04-28T17:03:00Z

In our April 24 blog post about the most recent developments in the case of the 11-year-old boy whose father abandoned him to go to California over financial worries, we mentioned that the Dakota County Juvenile Court's decision to have the boy's mother take over custody of him. This will be a dramatic turn of events for the boy, who believed his mother was deceased until his father told him the truth in a letter the day he left the boy behind. The mother's story is an example of how someone who loses parental rights over his or her child can regain authority by convincing the court that he or she has turned his or her life around.

The boy's mother had four children when she met the father in the late 1990s, but they had all been placed in foster care in 1998. The couple had the boy together but fought frequently over child custody matters. She lost parental rights over the boy when he was very young. She also gave up parental rights over her three oldest children after Ramsey County authorities found she had alcohol and mental health issues, though she eventually regain custody of her second-youngest child.

]]> Today, the woman is a good mother and provider for her children, her attorney said. She completed all the requirements the Dakota County court set out for her to begin parenting her youngest son again, the attorney added.

The court agreed. The judge noted that the court has a goal of reuniting parents with children when possible, and said that a troubled past is just one factor to consider, instead of being an automatic disqualification.

Source: St. Paul Pioneer Press, "Lakeville: Will abandoned boy's next move be for good?" Maricella Miranda, April 22, 2012

Update: Minnesota Senate shuts down Shared Parenting Act

2012-04-27T13:27:44Z

As reported in previous posts, the Children's Equal and Shared Parenting Act, which passed the Minnesota House of Representatives earlier this month, has been stalled in its last committee hearing before heading to the floor for a vote. According to the Senator who chairs the Judiciary Committee, he informed the bill's authors that it simply did not have the 34 votes needed to pass. He asked the authors whether they wanted to advance the bill to the floor or make some changes and try again.

To reiterate on earlier posts, the bill aims to change presumed child custody percentages to 45.1 percent for each parent to address current inequality in presumed shared parenting time. Currently, when parents divorce each parent receives 25 percent of parenting time with a family court judge deciding the remaining time and custody. Child support guidelines would not change and there are many exceptions built into the bill, including the current domestic violence provisions.

]]> There is hope however, that something can be done with the bill this session. Anything can happen at this stage and the chair of the Judiciary Committee said this is an important issue and he is open to compromise on some aspects of the bill. The Children's Equal and Shared Parenting Act bill has actually been around for 13 years in various forms and has been reviewed and reworked by numerous lawyers, judges, legislators, mediators, therapists and legal scholars.

Although there is concern regarding the high costs of implementing the new law, the more serious concern is that the bill would remove discretionary powers from judges. One supporter of the bill, a divorced dad, said that he didn't know that Minnesota had a standard of what's in the best interest of the courts. It should be about what is in the best interest of the children, he said and he urged Minnesota lawmakers to pass the bill.

If the bill's author changed the presumption of parenting time from 45.1 percent to 35 percent, the committee's chair thinks they could get enough votes to pass the bill this session. It is a good start, he said, that could help move the bill forward and perhaps next year work on making even more progress toward a more equal presumption of shared parenting time next year.

Source: Star Tribune, "Custody bill gets its wings clipped, but it might still fly," Gail Rosenblum, April 25, 2012

Mother of abandoned boy to get custody, court says

2012-04-24T19:27:46Z

In the latest chapter in the story of the Minnesota boy whose single father walked out on him last summer, the boy's mother is set to take over custody by the end of April. The Dakota County Juvenile Court is scheduled to review a plan to have the boy, 11, live with his mother. The plan also involves eventual visitation with his father, who was convicted early this year of child abandonment.

Readers will recall our extensive coverage of this child abandonment story, which began when the father, 60, left his son in their Lakeville home to search for distant relatives in California. In our March 23 post, we discussed statements by the boy's parents about working out a plan to share custody someday. This plan appears to be the culmination of those efforts, though an article in the St. Paul Pioneer Press suggests that visitation between the father and son has not been set yet.

]]> Right now, the boy is splitting time between his mom and his great-aunt, a licensed foster parent with whom he has been living for most of the time since the incident. In a letter written in February, the boy said he was happy living with his great aunt and wanted visitation with his mother, but was not sure he wanted to see his father.

Some readers may be surprised that the court is moving the boy to his mother's house despite the letter. Courts in Minnesota are required to consider the child's best interests when deciding child custody and visitation matters. Judges give the child's expressed wishes weight, especially if the child is over 10, but that is not automatically the final word.

Source: St. Paul Pioneer Press, "Lakeville: Will abandoned boy's next move be for good?" Maricella Miranda, April 21, 2012

House passes split child custody presumption bill

2012-04-20T16:40:24Z

As we discussed back in our Feb. 3 blog post, the Minnesota House was considering a bill that would require most parents who are going through divorce to receive at least 45 percent of child custody time. That bill has now passed the House, and awaits the Senate's decision on a similar bill before a unified bill is presented to Gov. Mark Dayton. The bill's sponsor, Rep. Peggy Scott, R-Andover, said it would "put an end to the family law system as it is today" in Minnesota.

Among the complaints Scott and supporters of child custody reform have with the current system, they say, is that courts too often give primary custody to mothers when the parents cannot agree on a custody plan. Those who pushed the bill, which included fathers'-rights groups, say that the system is based on old-fashioned ideas of parenthood and biased against men.

]]> If enacted, the bill would force judges to begin with the presumption that each parent would have their children 45.1 percent of the time, with the remaining time divided according to the judge's discretion, presumably based on the traditional standard of what is in the children's best interests.

Critics of the bill argued prior to the House vote that a one-size-fits-all approach would leave many parents with a custody plan that does not work for them. For example, some parents may not be able to care for their child 45 percent of the time.

Gov. Dayton has not indicated whether he would sign the bill if passed by the Senate.

Source: Minnesota Public Radio, "House approves bill to change custody laws," Sasha Aslanian, April 18, 2012

'Discernment counseling' helps couples decide whether to divorce

2012-04-19T15:22:33Z

Traditional marriage counseling is set up with the goal of repairing troubled relationships and avoiding divorce if at all possible. But in cases where only one spouse is really interested in trying to save the marriage, that type of therapy may not be effective and might only prolong the emotional turmoil that divorce can bring.

That is why therapists at the University of Minnesota are trying a new approach. It is called "discernment counseling," and researchers describe it as a way for couples to take a more objective look at their marriage -- and whether they could, or should, try to stay together.

]]> Discernment therapy is the brainchild of the Minnesota Couples on the Brink Project, a program developed by a U of M family social science professor. The professor said he developed the program after a Hennepin County Family Court judge told him that many divorcing couples that came to his courtroom seemed surprisingly congenial with each other.

The therapy is meant to give those couples -- as well as couples who are, unfortunately, trying to avoid an inevitable divorce -- a chance to take a "rest stop" before they divorce to decide what they really want. In about 30 percent of couples in counseling, one spouse is "leaning out," or more likely to seek divorce, while the other is "leaning in," or more motivated to stay together, the professor said. Discernment therapy works to make sure each spouse is sure about what they want and to make the process of divorce, if that is what occurs, is as painless as possible.

Source: Wall Street Journal, "When It's Just Another Fight, and When It's Over," Elizabeth Bernstein, April 3, 2012

Split child custody debate reaches Minnesota Legislature

2012-04-13T20:33:14Z

You may have heard about bills being introduced in various state legislatures that would change child custody laws to require courts to order even parenting time for each parent in most cases. A similar bill is up for debate in Minnesota, with the Senate Finance Committee recently considering the proposal at the Capitol.

As in many states, when parents divorce and are unable to agree on a child custody plan, the court generally begins by granting each parent 25 percent parenting time and dividing the remaining 50 percent between them. Judges consider evidence and come up with a custody order based upon what arrangement would be in the child's best interests.

]]> But supporters of the bill say that system is outdated. They include fathers'-rights advocates, who say that too often, judges default to giving primary custody to the mother due to a systemic bias against fathers. The bill, which would assume that each parent starts with 40 percent of parenting time, would be an update of child custody law by giving more men the chance to have the majority of parenting time, they say.

Opponents contend that bills like this one force parents into a "one size fits all" approach to custody by stripping judges of the power to consider circumstances unique to each case. For example, some parents are unable to care for their children 40 percent of the time, critics say. Another criticism is that the bill puts the focus on the parents' wishes instead of what is best for the child.

The bill was due to go before the Senate committee at the end of March.

Source: Minneapolis Star Tribune, "What's in a number? Minnesota's shared custody debate ..." Jeremy Olson, March 29, 2012

Having a child with cancer does not increase odds of divorce

2012-04-12T20:10:45Z

A family crisis like having a child be diagnosed with cancer would seem to draw as many married couples closer together as it causes to drift apart. Many people have known couples who got a divorce after their child suffered a severe injury or illness. The stress and heartbreak of the situation can seem too much to be able to keep a marriage healthy at the same time. But Minnesota readers may be surprised to learn about a new study that suggests that going through a child's battle with cancer does not affect the chances spouses will divorce.

The study spent 20 years following the families of 2,450 children who received a cancer diagnosis between 1980 and 1997. When controlling for other possible divorce factors like household income, the divorce rate for those kids' parents did not go up compared with healthy children of the same gender and age. Unmarried, cohabiting parents were no more likely to split up, even though the process would probably be less complicated than a divorce. Even when the worst happens and the child does not survive, the parents' divorce rate did not increase significantly, researchers said.

]]> Authors of the study cautioned that they confined their research to families in Denmark and that cultural differences may affect decisions about staying together or divorcing elsewhere, though they were willing to extrapolate to other countries "in principle."

So whether these findings would hold true for parents of children with cancer in Minnesota is not certain. Still, the study provides an interesting refutation to anecdotal evidence that many parents are unable to keep their marriage together during the emotional strain of caring for a seriously ill child.

Source: MSNBC, "Child's cancer does not boost parents' divorce risk: study," April 10, 2012

Four tips to improve your child custody case

2012-04-06T18:26:07Z

Many parents in Minneapolis understand that even minor mistakes can harm your case when you are in the midst of a child custody battle following divorce. Though the process is often stressful and emotionally difficult, a slip in discipline can turn into evidence against you in court.

In general, the best way to avoid sabotaging yourself in a child custody case is to refrain as cordial with your ex as much as possible. It may not be easy, but having as much time with your kids as the court will allow is almost certainly worth it. Here are four tips to keep in mind ahead of the custody hearing:

]]> 1. Don't criticize your ex to friends or the children. Remember that many of your friends are also friends with your former spouse. Assume that any comments you make about the divorce will get back to him or her. This can be especially damaging when you say something negative in front of the children, because the other parent could present those comments in court as an attempt at parental alienation, or turning the kids against their parent.

2. Stay cool in court. Even if your spouse says something untrue or outrageous, resist the urge to yell. An outburst in front of the judge will only lower his or her opinion of you and make you appear unstable. You will get the chance to make your case for custody.

3. Wait to move in with your new partner. Your children already have to adjust to the fact that their parents are no longer together, and having to meet Mom or Dad's new "friend" often complicates that effort. Many judges are reluctant to grant primary custody to the parent who has a new live-in partner.

4. Let the other parent talk to the kids when they are with you. Though your time with the kids is precious, if your former spouse calls to talk the kids, don't hang up. You do not want to be seen in court as difficult or unable to co-parent.

Source: Huffington Post, "Ways To Sabotage Child Custody," Joseph E. Cordell, April 2, 2012

'Pet custody' laws in Minnesota unlikely to change soon

2012-04-04T14:53:14Z

Readers of this blog may recall our Jan. 13 post, in which we discussed what people going through divorce do with their pets. Though many of us treat our dogs, cats and other animal companions like members of the family, Minnesota law considers pets to be chattel, or personal property. That means that, if the couple cannot agree on a plan to share the animal, the judge will give it to one spouse or the other, just as if the dispute were over a sports car or antique mirror.

Most states treat pets as chattel. There are four states that raise pets above the level of personal property in a divorce proceeding, but only in cases involving domestic violence. Sometimes, whether the pet belonged to one spouse before marriage or whether it was a gift from one spouse to the other can complicate the issue.

]]> It may seem unfair to animal lovers in Minnesota, but "pet custody" disputes are unlikely to receive more consideration in court, according to a family law attorney interviewed in the Minneapolis Star Tribune. She said that most court budgets are too strained dealing with traditional family law matters to willingly take on disagreements over the family pet.

Fortunately, it is possible for divorcing couples to work out shared pet custody arrangements on their own, or with the help of alternative dispute resolution resources such as arbitration. And people are often willing to give up significant marital assets to keep the pet for themselves. Another attorney said that some spouses will pay $15,000 to $20,000 to the other spouse for the pet.

Source: Minneapolis Star Tribune, "Pets become pawns in custody battles," Kristin Tillotson, April 4, 2012