Minnesota Divorce and Family Law Blog

Grandparent Visitation

Generally, a grandparent's right to see their minor grandchild is derivative of the child's parent's right to parenting time.  That is, the maternal grandparents have access to the child during the mother's parenting time, and the paternal grandparents have access to the child during the father's parenting time.  In most cases, grandparents do not have the separate right to their own visitation unless their child, who is the parent of the subject minor child, is deceased.

However, Minnesota law does provide for the family court to award visitation to a grandparent if the court finds that such visitation would be in the best interests of the child and would not interfere with the parent-child relationship.  The statute expressly directs the court to consider the amount of personal contact between the petitioning relative and the minor child prior to the application for relief.

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.  

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.  

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.

Study Group's Report on Joint Physical Custody Presumption

In a February 2008 blog entry, I mentioned that a bill came before the Minnesota Legislature to enact a presumption in favor of joint physical custody in Minnesota family courts.  The legislative committee referred the bill to a study group, whose charge was to consider the prospect of a joint physical custody presumption. 

The study group has issued its report with six non-comprehensive, non-unanimous recommendations.  The study group has recommended that the Legislature do the following:

1. Fund the collection of data regarding custody arrangements and parenting plans over several years;

2. Promote cooperative agreements in future custody and parenting legislation;

3. Continue to provide the family court the ability to consider individual needs of children and families in making custody and parenting decisions;

4. Consider the essential importance of the safety of children and parents;

5. Amend current statutes to make it clear that there is no presumption for or against joint physical custody (except for the rebuttable presumption against joint physical custody in cases involving domestic abuse); and

6. If there were a presumption of joint physical custody in the future, that the term be clearly defined, and its relationship to the determination of parenting time also be clearly defined.

While the study group worked under time limitations that precluded more comprehensive recommendations, the conclusions reached by the study group reflect thorough consideration of the issue.  

Custody of a Child of Unmarried Parents

From the time that a child of unmarried parents is born until a child custody order is issued by the family court, the mother has custody. As mentioned in a previous post, a Recognition of Parentage signed by both parents provides a basis for an unmarried father to obtain parenting time or custody of a minor child. However, a father who has signed a Recognition of Parentage form must obtain a court order (at a family court hearing, or by stipulation with the mother) for his parenting time or custody to be binding on the mother, and enforceable by the family court and other authorities, such as police officers.

The distinction that the mother has custody is moot if the mother and father are together. The legal conflict is most likely to arise when the couple separates. Obviously, before the couple separates, there is not the clear need for a court order designating custody and parenting time. Upon separation, the parent who does not have the child in his or her care, and who does not have the agreement and cooperation of the other parent, will need a court order to give him or her the right to access to the child.

Parenting Rights and Responsibilities

As a parent, you have the right to custody of, or parenting time with, your child; and the responsibility to financially support your child. Many divorced or separated parents believe that if a parent fails to pay child support, they are not entitled to see the child; or if they do not have the opportunity to see their child, then they should not have to pay child support.

In formal family court proceedings, a parent's child support payment record and a parent's right to see the child are not connected. I have heard many family court judges say that you cannot "buy" the right to see your child. The family court considers parenting time to the child's right, as much (or more) as it is the parent's right. The child has no control over whether child support is on time, adequate, or set at too high a level. Regardless of the financial circumstances, the child and the parent have the right to see each other.

When a parent's access to a child is restricted, it will not be for financial reasons, but reasons of personal safety and well-being of the child. So, in cases in which the parent's access is restricted, the child is still entitled to financial support. Again, the family court will consider financial support to be the child's right, regardless of whether the child has regular contact with the non-custodial parent. If one of the parent's access to the child is restricted for some reason, that is not the fault or responsibility of the child.

Outside of court, parents may use the child as a way of getting money, or use money as a way of getting to see the child. Given that family court is where parents go to appeal to the court to remedy their situation, it is important to know that the family court will not engage in the tit-for-tat concept with child support and parenting time.

What the Guardian Ad Litem Says

A guardian ad litem is appointed by the family court to get familiar with a minor child and the facts and circumstances surrounding the minor child's custody and parenting issues.

When the guardian ad litem makes recommendations regarding custody and parenting time, the family court judge making decisions on those issues is likely to rely on the recommendations and observations of the guardian ad litem. If someone opposes the guardian ad litem's report, they may need to request that the family court give them the opportunity to present evidence to counter the guardian's recommendations. However, many family court judges are hesitant to preside over that kind of dispute, figuring that the court's adoption of the guardian ad litem's recommendation is something of a foregone conclusion. That is to say, it would require compelling evidence to convince the family court to disregard the guardian ad litem's observations and recommendations. The family court may discourage the parties from proceeding with an evidentiary hearing, and encourage them to reach some kind of compromise to resolve the matter without a trial.

Ultimately, if someone is convinced that the guardian ad litem has not assessed the situation thoroughly, has not spent enough time to get to know the situation, or the decision that needs to be made is a close call, the family court is likely to hear the matter, and render a decision. If the party opposing the guardian ad litem's recommendations has the support of a custody evaluator, parenting neutral, or child's therapist, the family court is much more likely to rule in a manner that does not adopt the recommendations of the guardian ad litem.

Where the Children Should Go to School

When divorced or separated parents need to make a decision about where their child or children will attend school in the fall, it can turn into a legal dispute. Regardless of the custodial arrangement that the children live by, it is preferable if the parents can be in agreement about school enrollment. If the parents disagree, then the designation as to legal custody may be important. Parents with joint legal custody share the authority to make a decision about school enrollment. If each parent with joint legal custody has a different school arrangement in mind for the child, then the issue likely needs to be resolved by the family court or a parenting neutral.

Unfortunately, in many instances, the family court judge would rather not make a decision without the input of a parenting neutral, and there may not be time before the beginning of the school year for a parenting neutral to investigate the situation.

When a child's parents do not share joint legal custody, then there is less likely to be a legal issue regarding school choice. The parents' disagreement about the choice of school may defer to the decision of the parent with sole legal custody. But the school decision must be made in a manner that is consistent with the best interests of the child.

If the decision is whether to keep the child at the same school, or change the school the child attends, the child is likely to stay attending the same school unless the parents agree to a different school, or there is a compelling reason for the child to change schools over the objection of one of the parents.

Joint Physical Custody Presumption Subjected to Study

Today there was a committee hearing at the Minnesota Legislature on a proposed bill to enact a presumption in favor of joint physical custody. The bill would establish a rebuttable presumption that joint physical custody is in the best interests of a minor child. (Minnesota law already has a presumption that joint legal custody is in the best interests of the child, if one or both parties requests it, except in cases of domestic abuse.)

The committee heard testimony from supporters of the measure, who are pushing for family law reform due to their claims that noncustodial parents are not treated fairly in Minnesota family courts. The committee also heard testimony from opponents who expressed concern that a presumption of joint physical custody would have an adverse impact on domestic abuse victims, place children in the middle of conflict, and would be based upon a misunderstanding of the current state of the law, which does not contain a presumption AGAINST joint physical custody nor a presumption in favor of sole physical custody.

As a practicing divorce attorney for many years, my clients include both mothers and fathers; custodial parents and noncustodial parents; victims, perpetrators, and falsely accused perpetrators, of domestic abuse. The fact is, currently, many family court orders award joint physical custody, many orders grant sole custody to dad, and many orders grant sole custody to mom. There is a growing trend to avoid the label of physical custody altogether, and use parenting plans and/or alternate terminology. A presumption of joint physical custody will not help the family court system.

Joint physical custody should not be confused with co-parenting. It is not necessary for a child's parents to have joint physical custody in order for the child to have a healthy relationship with BOTH parents. It IS necessary for the child's parents to properly CO-PARENT (or to have the active involvement of parenting neutrals). But joint physical custody is not indispensable, and for many families, would actually INCREASE the conflict that the child experiences, instead of lessening the conflict.

The bill, which makes exceptions to the proposed joint physical custody presumption in cases of domestic abuse, would require a court to make detailed findings to overcome the presumption and order something other than joint physical custody. So the proponents of this bill are seeking to have the family court forum be a place where courts decide whether someone should NOT have joint physical custody and make detailed findings about why NOT. The family courts - with which many individual committee members recounted their own personal, bad experiences - are already a forum that seems rife with negative energy. Yet what is proposed is for the presumption to be joint physical custody, and for all the focus of contested custody proceedings to be what these parents are NOT doing right in order NOT to be awarded joint physical custody. It adds more misfortune to what is, for many, the most unfortunate experience of their lives.

Moreover, either parent may be willing to allow the other parent to have sole physical custody, but not when faced with a presumption in favor of joint physical custody. They may be unwilling to "opt out" of the joint physical custody presumption (even though they would otherwise not fight for joint physical custody) figuring that they would appear to be turning their back on their child. Again, for many families in transition, the focus needs to be on REDUCING THE CONFLICT, not landing a coveted label of "joint physical custody". In many instances, temporary or permanent custody arrangements other than joint physical custody are in the child's best interests.

One other concern is the domestic abuse exception that is written into the bill. The domestic abuse laws of Minnesota are good laws, with a very bad downside: false accusations. Domestic abuse proceedings are the classic, quintessential "he said, she said", and many litigants use the laws, in bad faith, as a tactic for undue advantage. This unfortunate practice would become only more common in the instance of a joint physical custody presumption with a domestic abuse exception.

Ultimately, this afternoon, the bill proposal was amended (i.e., compromised) to refer the issue of a joint physical custody presumption to a study group, to explore the family court processes, and determine what steps need to be made to improve the system. Many of the committee members expressed disappointment that such an action was, in fact, a failure to act. In my humble opinion, the bigger failure would have been enacting a joint physical custody presumption.