Minnesota Divorce and Family Law Blog

Moving Out of State With Minor Children

One important change in Minnesota law in recent years pertains to changing the state of residence of minor children.  Previously, Minnesota was one of a minority of U.S. states to allow a custodial parent to move with a child to another state unless the non-moving parent proved that the move was contrary to the child's interests.  That is, previously, the non-moving parent had the burden of proof, and if the burden of proof was unmet, the moving parent was granted the right to change the child's state of residence.

The current law in Minnesota now matches the majority of other jurisdictions: the moving parent has the burden of proof, to show that the move is consistent with the child's interests.  Minnesota Statute Section 518.175, subd. 3, provides as follows:

(a) The parent with whom the child resides shall not move the residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree.  If the purpose of the move is to interfere with parenting time given to the other parent by the decree, the court shall not permit the child's residence to be moved to another state. 

(b) The court shall apply a best interests standard when considering the request of the parent with whom the child resides to move the child's residence to another state. The factors the court must consider in determining the child's best interests include, but are not limited to:

 

(1) the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child's life; 

(2) the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration special needs of the child;

 

(3) the feasibility of preserving the relationship between the nonrelocating person and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties; 

(4) the child's preference, taking into consideration the age and maturity of the child; 

(5) whether there is an established pattern of conduct of the person seeking the relocation either to promote or thwart the relationship of the child and the nonrelocating person.

It is important to consider that, in many cases, the burden of proof is not dispositive.  If the moving parent has a compelling basis for moving the child, the court would permit the move, whether the moving parent or non-moving parent had the burden of proof.  Conversely, if the moving parent has a weak case for moving, it would not matter whether the moving parent or the non-moving parent had the burden of proof; the request to move would be denied.  The recent shift in the law impacts those cases in which the moving parent arguably has a strong basis for moving the child, but the non-moving parent has an equally strong basis for opposing the move.  

Moreover, as with most other custody and parenting issues, the family court is likely to rely on the observations and recommendations of a custody expert or parenting neutral in determining the relative merits of a moving parent's contentions versus the non-moving parent's oppositions.  

Joint Custody and Child Support

Under the Minnesota child support law that has been in effect since 2007, the amount of child support is based on both parents' incomes.  There is a guideline table in the statute that provides a set amount of base support that a child or children are entitled to based upon the sum of mom's income and dad's income.  The amount of the payor parent's obligation is figured by that parent's proportional share of the two parents' combined income applied to the base support in the aforementioned guideline table.  

If the parents have equal, or nearly equal, parenting time (i.e., if the child's living arrangement reflects joint physical custody), the calculation is different (...and too complicated to explain in brief space here.) Suffice it to say, the payor parent's obligation is substantially less.

The joint custodian's lower child support obligation reflects the fact that the joint custodian is contributing to regular, daily expenses in a manner that a non-custodial payor parent does not.  That is to say that, in the first example above, the obligor parent pays child support to the custodial parent, and the custodial parent covers the child's expenses, including clothing, footwear and regular, extracurricular activities.  (The payor parent does cover incidental expenses during parenting time, such as food, movie tickets and travel expenses.)  In the second example above, the joint custodian pays a LESSER amount of child support, but also contributes to the child's expenses, such as clothing, footwear and extracurricular activities (and not just parenting time expenses).  

There are times when a payor parent views it as a "bad deal" to pay the "higher" amount of child support. The up side is not having to contribute additionally to day-to-day expenses.  Conversely, the "down" side of paying the "lower" amount of support that a joint custodian pays is having to also contribute to day-to-day expenses.  

Don't Take (All) the Money and Run

At the outset of a divorce, should you clean out the joint account?  Or should you refrain from cleaning out the joint account, just to see the account cleaned out by your ex?

Suppose there is $10,000 in the account.  If you take the $10,000, your spouse is likely to cry foul, and you may well live to regret what can be perceived as an act of bad faith.  But if you do nothing, can you trust that your spouse won't take all the funds?  Will it be sufficient consolation to you that your spouse has painted himself or herself as a scoundrel?  (That won't pay the rent.)

If you feel like you must take some action, rather than doing nothing, you might consider withdrawing $5,000 (half the balance) and placing it into a separate account solely in your name.  Your spouse has much less reason to cry foul.  But you also pre-empt your spouse from unfairly secreting all of the joint funds without your knowledge.

Moving Out of State With the Children

When one parent wants to move out of state, with the children, a dispute often erupts because of the other parent's opposition to such a big change for the kids.  In most states, if a parent wants to move the residence of the children to another state, the burden of proving the merits of the move to the court lies with the parenting desiring to move. 

Until recently, Minnesota was in the minority: making the non-moving parent prove that the move is a BAD idea.  Legislation in 2006 brought Minnesota in line with the majority of jurisdictions, placing the burden of proof on the parent petitioning to change the children's state of residence. 

The fact is, in many cases, the difference in the laws does not make a difference in the outcome of the case.  Many proposed moves would be approved by the court, regardless of which parent has the burden of proof.  Conversely, many proposed moves would be denied, either way.  However, if each parent has a solid basis for their position on the issue, and the case is a "close call," the change in law can have an impact on whether or not the children are allowed to move.  

When parenting neutrals are appointed to make recommendations on out-of-state moves, they are required to base their recommendations on what is in the child's best interests (not on what might be in the best interests of one of the parents).  Under the previous law, the parenting neutrals would consider primarily whether there were drawbacks to the move and whether the purpose of the move was to interfere with the other parent's relationship with the child.  Now, the focus is on whether the move is compelling enough, from the standpoint of the child, to be worth the upheaval involved in the move.  

Another recent development is the court order that makes a parent's custody conditional on the parent remaining in Minnesota.  A parent is free to move where they please, but that does not go for the child too.  There is a growing incidence of the court awarding custody of the children to one of the parents, subject to the provision that if that parent decides to move out of Minnesota, custody would be transferred to the parent remaining in Minnesota.  

Why Mediation Is a Good Idea

Family law mediation is a forum in which a neutral party (the mediator) meets with parties to help facilitate a settlement of the disputed issues or, in the alternative, to rule out settlement exhaustively, and help the parties reach an impasse.  The mediator has no authority to make a decision or impose something upon one of the parties against their will; and the process is confidential.

There are three basic reasons that family law mediation is a good idea.  (Only one has to do with settling the case short of trial in family court.)  First, if the mediator is successful in facilitating a resolution, the case concludes without protracted litigation.  Second, most family court judges will insist that there be efforts to settle the case out of court before proceeding with trial.  Third, it is a helpful trial preparation tool. 

It is important to note that the latter two reasons are applicable if mediation is unsuccessful, that there is more to proceeding with mediation than getting the case settled.  If you appear before the family court for trial, you are likely to be in better standing with the family court judge if the judge knows that the court's decision is necessary, and the dispute is compelling enough not to have been resolved in mediation. The impasse reached in mediation is more meaningful than the impasse reached when a couple with communication problems stops speaking to each other.  

Finally, for purposes of trial preparation, mediation allows the courtroom disputes to be narrowed, and more sharply defined.  The confidential communications, while inadmissible in court, do provide some insight about the strengths and weaknesses of your case and the opposing party's case.  The family court judge who decides the case is likely to navigate through similar logic, questions and considerations that play out in the mediation sessions.  The trial of a case in which mediate was unsuccessfully attempted is more effective for the parties and the court than a trial proceeding that transpires from "square one."  

 

  

Financial Attrition

The goal of family courts is to render court orders (or approve parties' stipulations) that address a child's best interests (regarding custody and parenting time) or a fair and equitable settlement (regarding property and finances).  In the process of a family law dispute, one would like to think that both sides have a solid basis for their arguments, and that if the dispute persists through the court process, that it is the result of good faith and meritorious claims.  Or, if the dispute does not persist through a contested court process, that it has to do with one party having a clearly stronger claim as to the child's best interests, or what is fair and equitable in the circumstances.  

Unfortunately, in some instances, the outcome of the dispute is based on something that is not connected to a child's best interests or what is fair and equitable.  Instead it is based on financial attrition.  That is, on one party having the financial means to pursue the dispute, regardless of the merits of that party's position, while the other party lacks the means to advance their argument.  If one party has the funds to hire an attorney to proceed in the dispute (with or without a solid basis on the merits) and the other party does not, the result will not necessarily be proper justice.

As an example, if a parenting neutral recommends a certainly custody arrangement or parenting plan, and one of the parties is aggrieved by that recommendation, that party may hire a custody expert to contest the neutral recommendations.  Usually, a party cannot do that without substantial financial investment.  Oftentimes, when someone challenges neutral recommendations, while they may have the financial means to hire the expert, the facts and circumstances do not warrant overturning the neutral recommendations.  Yet, the party favored by the recommendations may lack the financial means to defend against the challenge of the aggrieved party.  The outcome of the dispute may be different from what is truly in the child's best interests, simply because one party had funds to fight, and other party did not.   

There is an "up" side to financial attrition, as well.  Someone who lacks a good-faith argument for their position, but also lacks the means to advance the argument, is foreclosed from manipulating the court process to gain unfair advantage.  

What makes the issue of financial attrition even more complex is this: sometimes an argument clearly has good faith, or clearly LACKS good faith, but other times, it is not so clear.  And someone may think their opponent is acting in bad faith, but the family court judge sees it differently.  Also, oftentimes, it is clear that one party has substantially greater means than the other; but not always.  (Someone with multimillionaire parents theoretically has the means to invest substantial sums in a family court dispute, but not if the parents are unwilling to contribute to the effort.)  Even less clear is whether the party with greater means has a misguided agenda (as opposed to an argument based upon genuine good faith).    

In the end, financial attrition may be in the eye of the beholder.  Whether real or perceived, it is an unwelcome factor in the family court process.  

Veto Power

If you have an issue or dispute that must be addressed by the family court, in almost all instances you have one or more opportunities, before the family court issues a decision, to reach a resolution with the opposing party, outside of court.  When the dispute is submitted to the mediation process, you have something that you lose if the decision is left to the family court judge or referee: veto power.

In mediation, the mediator does not have the authority to impose a resolution or court order upon you against your will.  If a compromise must be reached, or a concession must be made, you have the power to assent, or veto, the compromise or concession.  In many cases, you are better off to agree to a known concession than to have an unknown concession imposed upon you by the family court.

The point at which it becomes an exercise in futility to resolve the matter outside of court is when it is worth the risk of what the court might impose upon you.  That is, when the concessions that you must make in order to reach the out-of-court resolution are so substantial that you are likely to fare better in court.  Most disputes can result in a mutually satisfactory settlement in which both parties make reasonable, measured concessions.  If it is necessary for you to concede something, it is better to be able to veto the worst scenarios, in favor of something more palatable.

When The Court Reserves Alimony or Spousal Maintenance

In family court, there are cases in which the court grants spousal maintenance (i.e., alimony), and there are cases in which the court denies spousal maintenance.  There are also cases in which the court RESERVES spousal maintenance.  When the court reserves spousal maintenance, there is no obligation to pay spousal maintenance, now or in the immediate future, but there COULD BE the obligation to pay maintenance in the future.  

As an example, in Case A, the court finds that one spouse in a divorce is not self-supporting, and the court awards spousal maintenance to the dependent spouse.  In Case B, the court finds that both spouses are self-supporting, and the court refuses to award maintenance to either spouse.  In Case C, the court finds that one of the spouses is not self-supporting, but the other spouse is currently unemployed, so the court reserves maintenance.  This reflects the fact that the spouse who would otherwise pay maintenance does not currently have income to pay maintenance, but that the court believes that, once re-employed, that spouse will have the ability to pay maintenance.  The family court has reserved jurisdiction over the issue, so that in the future, the court may consider whether the facts and circumstances warrant a maintenance obligation.  

In many cases like Case B, when the court refused to award maintenance, the court loses jurisdiction to address the alimony issue in the future.  That is, the court's authority to award maintenance in the future expires, unless the court expressly reserves the issue.  The family court continues to have jurisdiction over the alimony issue only when one of the spouses is not self-supporting, or there is some doubt about one (or both) spouse's ability to become self-supporting in the future.    

Financial Early Neutral Evaluation

Financial Early Neutral Evaluation (FENE) is a process that is similar to Early Neutral Evaluation for custody and parenting time issues (which is sometimes referred to as Social Early Neutral Evaluation (SENE), to distinguish it from Financial Early Neutral Evaluation).  The FENE model does not contemplate a team of two evaluators, as in SENE; instead there is one evaluator handling a FENE process.  

The "early" aspect of FENE is important, because financial disputes in family law can be costly and time-consuming.  If the parties engage in the FENE process early on, they may save a great deal of time, energy and money, and still obtain a fair resolution.

The financial evaluator gathers the information about the dispute that the evaluator needs to address the issue.  This is very helpful in the financial arena, because oftentimes parties do not know the difference between relevant and irrelevant financial data.  The financial evaluator has the insight, and the neutrality, to help determine what financial data is needed, and what is not needed.  

As in the case of Early Neutral Evaluation regarding parenting issues, in FENE, the evaluator can help facilitate a resolution and/or provide their neutral view of how the court might address the financial issues in a courtroom dispute.  Therefore, if the FENE process does not result in resolution, parties likely leave the process ahead of where they were at the beginning: with an impartial assessment of what data is relevant, as well as an impartial assessment of the substantive financial issues.

Early Neutral Evaluation

If parents have a dispute, or potential dispute, about child custody or parenting time, the Early Neutral Evaluation (ENE) is a great option with a high success rate.  

The ENE model works as follows: the parties meet with a team of two evaluators, one man and one woman, who hear from each parent about the facts of the case.  The evaluators have training and experience that allows them to provide feedback about the circumstances of the case and what would be a likely outcome if the case were to be subjected to a full custody or parenting time evaluation.  

The evaluators can then attempt to facilitate agreement of the parents on a parenting plan that is suitable for the child(ren) involved, and also recommend other services of guidelines, such as parenting time supervisors, anger management resources or child therapists.  If the parents do not reach agreement, the case will proceed to evaluation, trial, mediation.  But even in such event of the matter not being resolved in ENE, it provides the parents with a better understanding of how the dispute will play out, and what the basis is for the other parent's disagreement.

It is an informal process, in which the parents are not "testifying" and are not under oath.  So the evaluators' observations are only as good as the facts they get from the parents.  In most cases, the evaluators get an accurate enough understanding of the circumstances to make helpful observations and recommendations.  The process bears out the fact that many 90-day, full-blown custody evaluations reach the same conclusions that ENE evaluators reach during a three-hour session.  

If one parent calls the other parent an alcoholic, an abuser, or insists that the other parent is mentally ill, and the other parent denies it, the evaluators have to make their recommendations notwithstanding the disconnect between the parents' presentations of the circumstances.  But in ENE, as in custody cases generally, the fact that there is contention about alcohol, abuse or mental illness means the issue needs to be addressed regardless of whether one parent is alcoholic, abusive or mentally ill.  

If ENE is successful, the parties sign off on a parenting plan based upon the terms reached during the ENE session(s), and it is not necessary to proceed with a contested custody or parenting time dispute.