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.  

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.

Recognition of Parentage

When a child is born to a couple that is not married, it is important for both parents to sign off on a Recognition of Parentage form, for custody and parenting time purposes, as well as for child support purposes. A father's right to custody or parenting time is established easily by a Recognition of Parentage, whereas without a Recognition of Parentage, the father is more likely to need genetic proof of paternity.

If a married couple separates, each party has the right to custody and parenting time by law, due to the marriage. If an unmarried couple with a child separates, the Recognition of Parentage provides a basis for determining custody, parenting schedule and child support issues. Without the Recognition of Parentage, determination of those issues is delayed while parentage is proven unless the parties both agree not to contest parentage.

Home Alone

Yes, over the holidays I spotted the last scene of the movie Home Alone while switching channels. Who didn't? So, how old should a child be to be left home alone? One of the most common questions, especially when children are in the care of a single (and busy) parent.

A few years ago, I needed to address this question in an actual case when I was serving as parenting time expeditor for a divorced couple with one child. There is no law directly on point, so I contacted a child development professional. The answer was, as so often is the case: it depends. Different children have different maturity levels, and differing ability to handle the responsibility of being alone.

Five-year-olds are clearly too young. Most older teenagers are old enough be home alone. The issue arises most when there is a child involved between the ages of eight and eleven, which is the period of time during which most children grow old enough to be home alone. Also, when there are multiple children involved, parents may disagree on how old the older child(ren) need(s) to be to supervise the younger child(ren).

Ultimately, the resolution lies either in the parents' agreement about what is reasonable or, in the absence of agreement, the recommendation of a neutral professional.

Child Custody Neutrals

If divorcing or separating parents disagree about child custody or parenting arrangements, it is likely necessary for a neutral professional to be involved in resolving the dispute.  The most common neutral professionals are custody evaluators, guardians ad litem, parenting time expeditors, custody mediators and parenting consultants. 

Custody evaluators investigate the facts and circumstances surrounding the child's situation, and render a written report with observations, comments and recommendations.  Typically the custody evaluation takes three to four months.  The custody evaluator will interview each parent; meet with the child (usually at least once in each parent's care); and contact collaterals such as family members, teachers and medical professionals.  The custody evaluator does not have the authority to make a final decision, but his or her recommendations are given substantial weight when the court makes that decision.  The custody evaluator does not stay involved in the case beyond the point that the custody report is issued.

Guardians ad litem are appointed to represent the interests of the child.  A guardian ad litem is not literally the child's attorney, and may or may not be a practicing attorney.  The guardian ad litem becomes familiar with the child and the child's circumstances so as to be able to inform the court of what is in the child's best interests.  The guardian does not have the authority to make the custody decision, but the guardian's comments and observations are given substantial weight.  The guardian may be involved in the case over the course of weeks or months (and less commonly, years). 

Parenting time expeditors are described in a separate post.  Custody mediators meet with the parents to attempt to facilitate an agreement.  The mediator typically will not meet with the child directly, and has no authority to make a decision, and no opportunity to speak directly to the court. 

A parenting consultant has broader authority that is usually defined in the agreement that provides for the consultant's appointment.  The consultant will meet with the parties and will determine to what degree it is necessary and appropriate for the consultant to meet with the child.  The consultant typically will attempt to mediate the dispute, as a mediator would.  But if there is an impasse, unlike a mediator, a consultant often has the authority to make a decision.  Depending on the terms of the consultant's appointment, the consultant's decision may be binding on the parties and subject to review by the family court. 

Different child custody cases can benefit from different child custody neutrals, depending upon the facts and circumstances of the custody dispute.  The purpose of the neutral is to bring the dispute to a conclusion relatively quickly and inexpensively, and to avoid the high conflict of family court litigation. 

The Status Quo

In many instances when facing a dispute during a divorce or custody case, it is important to be mindful of the existing circumstances: where the child is living; who is in possession of the house; whether both spouses are working outside the home.   It is important because, all other things being equal, the court is very likely to maintain the status quo, if possible, when deciding an issue. 

This is especially important in the case of temporary orders (i.e., court orders that are in effect while the case is pending).  If the court must decide the temporary parenting schedule, the court will likely need a specific reason to CHANGE what the current pattern is.  Unless there is good reason, the court is likely to stick to the "status quo."  If one party has refrained from working outside the home for several years, the court is unlikely to expect that party to immediately produce substantial income.  Instead, the court will (at least temporarily) maintain the status quo, and refrain from expecting separate earnings from that party.

The status quo issue is an important consideration when someone is deciding whether or not to move out of the marital residence.  If someone moves out of the house, they can be creating a new "status quo" that they may need to be prepared to stick with.  Someone who moves out, leaving children at the marital home with the other parent, allows for a new "status quo" that the children are living with one parent in the home.  The party who moved out may have a difficult time later obtaining sole custody, or even joint custody, based upon the status quo established with the move-out. 

The same can be said of later obtaining possession of the house.  If one party moves out, then the family court is unlikely to impose upon the other party the disruption of moving out over his or her objection. 

New Child Support Law Reduces Disputes About Parenting Time

The new Minnesota child support law that came into effect in January 2007 has helped to improve the dynamics between divorced, separated and unmarried parents.  In the past, a parent in the midst of a dispute with the other parents about visitation or parenting time might not want to agree to the other parent having more parenting time, because that might result in a lower amount of child support paid by the visiting parent.  Conversely, a parent in the midst of a child support dispute might insist on having more parenting time for the sake of paying lower child support. 

The new law encourages parents to keep separate the issues of the parenting schedule and the money.  Under the new law, there is no distinction in the child support obligation between a parent who sees the child(ren) eleven percent (11%) of the time and one who sees the child forty-four percent (44%) of the time.  Such a parent is given a break on their child support to reflect the time that the child is in that parent's care. 

If a parent sees the child less than ten percent (10%) of the time, there is no such reduction.  And if the parent sees the child more than forty-five percent (45%) of the time, both parents pay day-to-day expenses of the children, and a smaller amount of child support is transferred between the parents. 

Relatively few children have parents arguing about which kind of parenting schedule applies, i.e., whether it is 10%-or-less; 45%-or-more; or between 10% and 45%.  Consequently, fewer children suffer the conflict that results when parents squabble over "money for parenting time."