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Laws on Obtaining or Modifying Alimony (Spousal Maintenance)

April 21, 2015Spousal MaintenanceLeave a comment

I. Laws on the Initial Establishment of Spousal Maintenance

A trial court has wide discretion in determining spousal maintenance and its determination is final unless the court abused its discretion. The trial court’s determination is examined in light of the factors set forth in Minn. Stat. § 518.552. See Haasken v. Haasken, 396 N.W.2d 253, 259 (Minn.Ct.App.1986) (citations omitted).

Minn. Stat. § 518.552 permits the trial court in its discretion to order either temporary or permanent maintenance after considering all relevant factors including those enumerated in the statute, which are:

(a) the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party’s ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party’s age and skills, of completing education or training and becoming fully or partially self-supporting;

(d) the duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;

(e) the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;

(f) the age, and the physical and emotional condition of the spouse seeking maintenance;

(g) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and

(h) the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party’s employment or business. Minn. Stat. § 518.552, Subd. 2 (2014).

No single factor is dispositive in reviewing a maintenance award. See Elwell v. Elwell, 372 N.W.2d 67, 69 (Minn. Ct. App. 1985).

Minn. Stat. § 518.552, subd. 2(b) creates an affirmative obligation on the part of the spouse seeking maintenance to seek appropriate employment. See Eckholm v. Eckholm, 368 N.W.2d 386 (Minn. Ct. App.1985).

Pursuant to the statutory factors outlined in Minn. Stat. § 518.552, the trial court must balance the financial needs of the spouse seeking maintenance and his or her ability to meet those needs against the financial condition of the spouse providing the maintenance. Particular attention is given to periods of training or education. Krick v. Krick, 349 N.W.2d 350, 352 (Minn. Ct. App. 1984), citing Erlandson v. Erlandson, 318 N.W.2d 36 (Minn. 1982).

Some Minnesota Supreme Court decisions have limited awards of permanent maintenance to exceptional cases where there is little likelihood of a spouse attaining self-sufficiency. McClelland v. McClelland, 359 N.W.2d 7 (Minn. 1984); Abuzzahab v. Abuzzahab, 359 N.W.2d 12 (Minn. 1984).

A spouse’s ability to work can be assessed by an examination of the spouse’s current work and earnings, and/or a vocational assessment of the spouse’s employment skills and the job opportunities available for those skills.

The current work and earnings of a spouse will present a satisfactory assessment of earnings, unless it is argued that the spouse is underemployed.

If a spouse is unemployed or underemployed, the first issue to be addressed is whether a vocational assessment will produce any worthwhile information.

Unless a spouse is disabled, there is a presumption that the spouse has some earning capacity. Going above minimum earning capacity or the spouse’s actual earnings requires a vocational assessment, or the presentation of other credible evidence, such as recent job offers. Going below this standard requires a vocational assessment, medical testimony on a spouse’s disability, or the presentation of other credible evidence. Limited ability could also be argued, based on a child who requires a parent’s in-home care.

In assessing one’s ability to be employed, training and education, as well as job opportunities, must be examined. An absence of job opportunities sufficient to provide a livable income will affect the court’s determination. Thedens v. Thedens, 400 N.W.2d 821 (Minn. Ct. App. 1987); Frederiksen v. Frederiksen, 368 N.W.2d 769 (Minn. Ct. App. 1985); McGowan v. McGowan, 363 N.W.2d 359 (Minn. Ct. App. 1985).

An older dependent spouse in a long-term marriage who never worked outside the home, or who was not working outside the home around the time of separation, may not be required to find employment. Nardini v. Nardini, 414 N.W.2d 184 (Minn. 1987).

A court may impute an income to the spouse seeking maintenance if the spouse seeking maintenance is under-employed for the purpose of obtaining maintenance. Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. Ct. App. 1997).

However, where the spouse in a long-term marriage, who is seeking maintenance, has worked in a specific job that was not obtained for the purpose of positioning herself for maintenance, the court cannot impute additional hours or a higher income simply because the spouse seeking maintenance may have other opportunities available to her. Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. Ct. App. 1997). The Minnesota Court of Appeals, citing the case of Schallinger v. Schallinger, 699 N.W.2d 15, 17 (Minn. Ct. App. 2005), review denied (Minn. Sept. 28, 2005), held that the trial court was not imputing income to a party where the court finds that a party is capable of full-time employment because this is essentially a finding that a party can meet her needs independently, one of the statutory factors in addressing a request for maintenance. The court held that because the finding is not an imputation of income it needs no finding of “bad faith” to accompany it. Rauenhorst v. Rauenhorst, 724 N.W.2d 541, 546 (Minn. Ct. App. 2006).

Assistance for temporary periods to allow adjustment by, rehabilitation for, or education of a spouse may be appropriate. Pekarek v. Pekarek, 362 N.W.2d 394 (Minn. Ct. App. 1985), appeal after remand 380 N.W.2d 161 (1986); Napier v. Napier, 374 N.W.2d 512 (Minn. Ct. App. 1985); Maher v. Maher, 393 N.W.2d 190 (Minn. Ct. App. 1986).

A spouse is not required to change her vocation for a more lucrative position before she is entitled to maintenance. Coffel v. Coffel, 400 N.W.2d 371 (Minn. Ct. App. 1987)

II. Laws on the Modification of an Award of Spousal Maintenance

Absent language in the judgment and decree divesting the district court of jurisdiction, the court retains the authority to determine whether changed circumstances warrant modification. Kemp v. Kemp, 608 N.W.2d 916, 921 (Minn. Ct. App. 2000).

When a stipulation fixing the respective rights and obligations of the parties is central to the original judgment and decree, the district court considering the spousal maintenance modification “should view [the original judgment and decree] as an important element because it represents the parties’ voluntary acquiescence in an equitable settlement.” Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981). The provisions of the stipulation establish the “baseline circumstances against which claims of substantial change are evaluated.” Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).

A district court may modify a spousal maintenance award if the spouse seeking the modification establishes that there has been a substantial change in circumstances since the last order regarding maintenance. Minn. Stat. § 518A.39, subd. 2(a) (2014).

To establish that there has been a substantial change in circumstances, the spouse seeking the modification must show that one spouse has had a significant increase or decrease in gross income or a significant increase or decrease in need, and must further demonstrate that the change renders the current maintenance award “unreasonable and unfair.” Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997). The terms “unreasonable and unfair” are “strong terms which place upon the claimant a burden of proof more than cursory.” Giencke v. Haglund, 364 N.W.2d 433, 436 (Minn. Ct. App. 1985).

Although the district court is vested with the broad discretion to determine whether modification is appropriate, the Minnesota Supreme Court has urged courts to “exercise that discretion carefully and only reluctantly alter the terms of a stipulation governing maintenance.” Sieber v. Sieber, 258 N.W.2d 754 (Minn. 1977). The existence of a stipulation, however, does not prevent a subsequent modification if the parties’ circumstances have materially changed. Sand v. Sand, 379 N.W.2d 119, 125 (Minn. Ct. App. 1985), review denied (Minn. Jan. 31, 1986).

Where an obligor’s income has decreased substantially, Minnesota Courts have typically found grounds for a reduction or elimination of the obligor’s spousal maintenance obligation. See LeFebvre v. LeFebvre, 232 N.W.2d 786 (Minn. 1975); see also Fulmer v. Fulmer, 594 N.W.2d 210 (Minn. Ct. App. 1999).

A substantial increase or decrease in the gross income of an obligor or obligee, or a substantial increase or decrease in the needs of an obligor or obligee, are sufficient to show changed circumstances. Dougherty v. Dougherty, 443 N.W.2d 193, 194 (Minn.App.1989).

A substantial change in circumstances is presumed if the gross income of the obligee or obligor has decreased by at least 20 percent, provided that such change is not the fault or choice of either party. Minn. Stat. § 518A.39, subd. 2(b)(5) (2014). Once the district court determines that there has been a substantial change in circumstances warranting a modification, as the district court did here, it must apply the factors under Minnesota Statutes section 518.552 to determine the amount of the maintenance award. Minn. Stat. § 518A.39, subd. 2(d) (2014).

The district court can also reopen a final order with respect to an award of spousal maintenance for the following reasons:

1. Mistake, inadvertence, surprise, or excusable neglect;

2. Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under the Rules of Civil Procedure, rule 59.03;

3. Fraud, whether denominated intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party;

4. The judgment and decree or order is void; or

5. The judgment has been satisfied, released, or discharged, or a prior judgment and decree or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment and decree or order should have prospective application.

Minn. Stat. § 518.145, Subd. 2 (2014). Section 518.145 applies to awards of spousal maintenance under Minn. Stat. § 518.552, Subd. 4 (2014).

Appealing a Domestic Abuse Order

November 18, 2013DivorceLeave a comment

There are some unique rules to keep in mind when appealing a domestic abuse order. Domestic abuse proceedings brought pursuant to Section 518B.01 are “special proceedings” within the meaning of Minn. R. Civ. App. Proc., Rule 103.03(g) (special proceeding is such a proceeding as may be commenced independently of a pending action by petition or motion, upon notice, to obtain special relief). Orders under section 518B.01 are final orders in special proceedings and are appealable on their own. There is no need to serve and file a notice of filing of a special order and the appeal deadline begins to run from the date the special order is issued.

In fact, regarding special proceedings generally, the proper appeal is from the original order or judgment granting or denying relief, and a new trial motion is unnecessary to preserve issues for appeal. Only if the legislature has indicated its intent that special proceedings be governed by the same rules as other civil cases, is a new trial motion authorized and an appeal may be taken from an order denying the new trial.

A new trial motion in domestic abuse proceedings is not authorized, and any order denying such a motion is not appealable.

Minnesota law provides a two-step analysis for awarding spousal maintenance

November 15, 2013Alimony, Divorce, Spousal Maintenance, Uncategorized2 Comments

Minnesota law provides a two-step analysis for awarding spousal maintenance. First, the district court determines that the spouse requesting that maintenance lacks sufficient property, or is otherwise unable to provide adequate self-support for her reasonable needs in light of the standard of living established during the marriage. In essence, the district court should award spousal maintenance when a party shows a sufficient and reasonable need.

In approaching the first step of the analysis, the district court has wide discretion in determining a party’s need for spousal maintenance. No single factor is dispositive, and the district court is afforded the discretion to weigh the facts of each case to determine whether maintenance is appropriate.

A district court performs the second step of the analysis to determine the duration and amount of the award of spousal maintenance after determining that the requesting spouse needs maintenance. It is the second step of this analysis that is referenced to in Subdivision 2 of Section 518.552. The factors listed in this section are:

(e) the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;

(f) the age, and the physical and emotional condition of the spouse seeking maintenance;

(g) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and

In determining spousal maintenance the district court does not need to make findings regarding each factor. It is only necessary that the district court have considered each factor.

To affirm the order of a lower court, the higher court need only determine that the district court’s conclusions were logical and supported by the facts on the record. The “record” upon which the district court’s conclusions are to be based is not limited to the issues and facts before the district court on any given hearing date, but contains all the documents filed, all the exhibits filed, and all the proceedings held before the tribunal, and this is the same “record” which under review by the higher Court. Furthermore, the higher Court must look at the evidence “in the light most favorable” to the district court’s findings.

Contributing Real Property to an LLC

November 6, 2013UncategorizedLeave a comment

There are ordinarily no federal income tax consequences for a person contributing real property to an LLC or services to an LLC, but there are some exceptions to this rule that you should keep in mind when planning for contributions by new or existing members of LLCs.

Under IRC §721(a), a contribution of property to an LLC is generally tax free to both the contributor and the LLC. There is no 80 percent control requirement to obtain tax-free treatment for a contribution to an entity taxed as a partnership as there is for a contribution to a corporation under IRC §351. Therefore, a contribution of property to an LLC will be tax free even if the contributor obtains only a relatively small interest in the LLC in exchange.

Tax-free treatment under IRC §721(a) is available even a contribution is made by a new member to an LLC that previously had only one member. Revenue Ruling 99-5, 1999-1 CB 434, treats a contribution of property by an new member to a single member LLC as a contribution of property to a new LLC with two members. The existing member is also treated as having made a contribution to a new LLC, so the transaction is generally tax free for both members.

There are, however, some exceptions to the general rule of IRC §721(a) providing tax-free treatment of contributions of property to entities taxed as partnerships. The first of these exceptions applies if substantially all of the assets of the LLC consist of readily marketable stock or securities, a member contributes stock and securities, and the result is a diversification of the member’s portfolio. In this case, the member is required to recognize gain on the contribution under IRC §721(b).

Another exception is that a contribution of property by a member to an LLC is taxable if it is treated as part of a disguised sale or exchange under IRC §§704(c)(1)(B), 707(a)(2)(B), or 737. These sections, which are designed to prevent the avoidance of taxable gain by structuring sales or exchanges as tax-free contributions and distributions from an entity taxed as a partnership, apply in the following circumstances:

A member contributes property to an LLC, and the contributed property is distributed to another member of the LLC within seven years;
A member contributes property or money to an LLC and receives a related distribution of money or property from the LLC, with a distribution within two years being presumed to be related; or
A member contributes appreciated property to an LLC and receives other property from the LLC in liquidation of the member’s interest within seven years.

In these situations, the contributing member may have taxable gain at the time the disguised sale or exchange is completed.

If a person acquires an interest in an LLC, and the consideration goes to another member rather than to the LLC, the transaction will be treated as a sale of an interest in the LLC by the other member. In this case IRC §721(a) will not apply, and the other member will recognize taxable gain or loss on the sale.

If a person contributes services to an LLC in exchange for a member’s interest, the tax consequences are determined under Revenue Procedure 93-27, 1993-2 CB 343. The contributing member will not generally be taxed so long as he or she receives only an interest in the profits of the LLC. But if the contributing member receives an interest in the capital of the LLC in exchange for past or future services, he or she will be deemed to have received taxable compensation income equal to the value of the capital interest. The LLC will have a corresponding deduction for compensation paid.

What happens on appeal?

November 6, 2013Alimony, Antenuptial Agreements, Attorney's Fees, Child Custody, Child Support, Contracts, Divorce, Prenups, Spousal MaintenanceLeave a comment

I frequently get calls from people who want to know what to do when they are not happy with the decision of the judge and want to know what happens on appeal?

In Minnesota, courts of appeal review both the facts and legal conclusions reached by the lower courts.

Generally, the standard of review applied by the Minnesota courts of appeal regarding issues of law is called “de novo”, which means that the appellate court does not need to defer to the lower court on issues of law and can look at them as if they were deciding them for the first time. The courts of appeal, however, cannot set aside findings of fact unless they are clearly erroneous, meaning that they have to defer to some degree to the lower court’s decision.

Furthermore, due regard must be given by the court of appeal to the unique opportunity of the trial court to judge the credibility of the witnesses. The courts of appeal cannot “reconcile conflicting evidence” in their review of the trial court’s findings of fact. The fact “[t]hat the record might support findings other than those made by the trial court does not show that the court’s findings are defective.”

Foundationally, the appellate Court has equitable authority in family law cases to grant relief as the facts and equities require.

On appeal, the trial court’s findings of fact, whether based on documentary or oral evidence, will not be set aside unless clearly erroneous, and the record is reviewed in a light most favorable to the findings. Findings of Fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made. If there is reasonable evidence to support the trial court’s findings the appellate court should not disturb them. In other words, to make a successful challenge to the district court’s findings of fact, the party challenging the findings “must show that despite viewing [the] evidence in the light most favorable to the [district] court’s findings…, the record still requires the definite and firm conviction that a mistake was made.” “That the record might support findings other than those made by the [district] court does not show that the court’s findings are defective.”

It is important to note that the record on appeal consists of all “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings,” and is not just the transcript of the proceedings or the most recent order from the trial court.

How can I change my spousal maintenance (alimony) order?

November 3, 2013Alimony, Divorce, Spousal Maintenance, Uncategorized1 Comment

Clients often ask me: “how can I change my spousal maintenance (alimony) order?”

So long as there is not an agreement that the district court can never change the order, a district court may modify a spousal maintenance award if the person seeking the modification establishes that there has been a substantial change in circumstances since the most recent modification.

Where the income of the person who is paying spousal maintenance (alimony) has decreased substantially, Minnesota Courts have typically found grounds for a reduction or elimination of the obligor’s spousal maintenance obligation.

In fact, a substantial change in circumstances is presumed if the gross income of the either the person paying or receiving the spousal maintenance (alimony) has decreased by at least 20 percent, provided that such change is not the fault or choice of either party.

Once the district court determines that there has been a substantial change in circumstances warranting a modification, it must apply the factors in the statute to determine the amount of the maintenance award.

If you don’t agree with the decision of the district court, you can appeal to a higher court to review its decision. When these types of orders have been appealed, it is well established that a district court’s order regarding support will be reversed if this appellate court is convinced that the lower court abused its discretion by reaching a clearly erroneous conclusion that is against logic and the facts on record.

In other words, the appellate court has the power to review a district court’s decision regarding a spousal-maintenance modification for an abuse of its discretion.

A district court has broad discretion over issues of spousal maintenance but will be ruled to have abused that discretion when it resolves a maintenance question in a manner that is against logic and unsupported by the facts on the record.

In other words, the district court will be found to have abused its discretion if it modifies a maintenance award without findings of fact that are supported by the record or if it improperly applies the law.

A finding of changed circumstances is a factual finding that will not be set aside unless it is clearly erroneous, and the change of circumstances can be express or implied by the findings of the district court.

Changing a Bad Order

October 30, 2013Alimony, Attorney's Fees, Child Custody, Child Support, Contracts, Divorce, Spousal MaintenanceLeave a comment

Changing a bad order is not easy, but if you have received an Order that is incorrect or you do not agree with you can try to change it by making a motion for amended findings (depending on the type of order).

The purpose of a Motion for Amended Findings is to permit the trial court a review of its own decision.

Accordingly, when you seek to challenge established findings, your motion must both identify the alleged defects in the challenged findings and explain why the challenged findings are defective.

When bringing a motion for amended findings, it is no enough to show that the proposed amendments are justified by the evidence. Rather, when claiming that the record does not support the findings, you have the burden of addressing the evidence on record, explaining why the record does not support the trial court’s findings and why the alternate proposed findings are necessary.

In doing so, you are limited to the files, exhibits, and minutes of the court, and may not rely on evidence that is not part of the record.

Marital and Nonmarital Property in Minnesota

October 21, 2013Alimony, Alternative Dispute Resolution, Antenuptial Agreements, Divorce, Prenups, Spousal MaintenanceLeave a comment

Minnesota courts are required to equitably divide marital property. The term “equitably” does not mean equally, and though the division of marital property is generally done equally, at times there are circumstances that would make an equal division unfair.

Whether property is marital or nonmarital is a question of law. All property, real or personal, acquired during a marriage is presumed to be marital property. This presumption is overcome by showing that property is nonmarital, meaning any real or personal property, acquired by either spouse before, during, or after the existence of their marriage, which is acquired before the marriage or is acquired in exchange for or is the increase in value of property acquired before marriage. Nonmarital property includes property that is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse. For nonmarital property to maintain its nonmarital status, it must either be kept separate from marital property or, if commingled with marital property, be readily traceable.

The present value of a nonmarital asset used in the acquisition of marital property is the proportion the net equity or contribution at the time of the acquisition bore to the value of the property at the time of purchase multiplied by the value of the property at the time of separation. The remainder of the equity increase is characterized as marital property.

Except for a proportion of appreciation that is determined exclusively by considering an identified nonmarital investment, any other appreciation is subject to the legal presumption that property acquired after marriage is marital property. Accordingly, the legal formula should be used to apportion an increase in the property’s value only if that property has an identified nonmarital component.

If necessary, it is possible to trace a current asset to a nonmarital source. To claim a nonmarital interest in a current asset, a party must show by a preponderance of the evidence that the asset was acquired in exchange for nonmarital property. Nonmarital assets commingled with marital asset may lose its nonmarital status if it cannot be traced to nonmarital source.

In short, if you are in the process of divorce, it is important to understand the difference between marital and nonmarital property in Minnesota. If you believe that some of your property might be non-marital, you will be required to provide the proof.

Grandparent and Third Party Visitation Rights in Minnesota

October 19, 2013Alternative Dispute Resolution, Child Custody, DivorceLeave a comment

There has recently been a great deal of litigation over grandparents’ right to see their grandchildren.

Generally speaking, the courts expect that grandparents will see their grandchildren during their own child’s parenting time. Unfortunately, there are situations where this doesn’t work, either because the grandparents’ own child is dead or absent, or has had his or her own parenting time severely restricted, or because the grandparents are estranged from their own child, and therefore neither parent is willing to allow visitation.

As a result, all states have created statutes authorizing their courts to award visitation to a grandparent under certain circumstances. In Minnesota, the courts have discretion to determine what is in the best interests of a child, including time with grandparents.

When the grandparents are the parents of a deceased parent of the grandchild, there is a process for the grandparents to establish rights to visitation by filing a document called a petition. The court can grant the grandparent’s request if it finds that visitation rights would be in the best interests of the child and would not interfere with the relationship between the child and living parent.

The court will consider things such as the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the request.

A petition can also be filed separately and outside of a divorce, paternity, or other legal action if the minor child has lived with the grandparents for a year or more. If that occurs, and the parent subsequently decides to remove the child from that grandparent’s home, the grandparents may petition the district court for an order granting them reasonable visitation rights to the child.

In these cases, the court must consider the amount of contact between the parents or grandparents and the child prior to the filing of the petition. Obviously the most important consideration here will be the extent and quality of the grandparents relationship with the grandchildren. The more extensive and positive the contact, the more likely it is that grandparent visitation will be awarded.

If a petition for grandparent visitation is denied by the court, a grandparent has to wait six months to try again, unless the parties all agree otherwise.

Grandparents’ rights to visitation are terminated when a biological parent’s rights are terminated and/or the child is adopted by a person other than a stepparent or grandparent. However, if a child is adopted by a stepparent, a grandparent or great grandparent may petition the court for an order setting visitation under certain circumstances.

It is important to note that these third party visitation laws do not protect only grandparents and the law has extended visitation rights beyond familial relationships.

Great-grandparents are expressly mentioned in two sections of the statutes, the ones dealing with a child with a deceased parent and the one dealing with children who have lived with a grandparent for a year or more.

Also, any other person who has cared for a minor, other than a foster parent, for two years or more may petition the district court for an order granting the person reasonable visitation rights to the child. The standard of proof is very similar to that where a grandparent requests visitation rights.

In these types of cases, the court is specifically required to consider the reasonable preference of a child, deemed by the Court to be of sufficient age to express a preference, which usually occurs around the age 12.

Answers to some common questions about child custody in Minnesota

October 16, 2013Alternative Dispute Resolution, Child Custody, Child Support, DivorceLeave a comment

What is joint custody? What is sole custody?

In Minnesota, joint custody means the condition under which both parties share custody and where neither parent’s custody rights are superior. The parties are required to consult and attempt to reach agreement with respect to decisions affecting the lives of the minor children.

There are two types of custody: Legal and Physical. Legal custody is the authority to be involved in the educational, medical, and religious decisions affecting the child’s life. Physical custody is the authority to be involved in the decisions involving the routine daily care of the child.

It is possible for parents to share one type of custody and not the other.

In a joint custody situation, each of the parties is required to provide advance notice to the other regarding these decisions so as to facilitate co-parenting communication, cooperation, and mediation if necessary.

Sole custody is the condition under which one party has sole authority to make these decisions.

This designation to one parent is often done if the parents have difficulty communicating, have different beliefs governing an issue, or if one parent is a significant distance from the other.

If both parents share custody does anyone pay child support?

The child support order, and whether one should be issued, depends on the actual parenting time schedule and each parent’s income.

Can a parent refuse to allow visitation if child support is not paid?

No. Failure to pay child support is not a basis for denying another parent their parenting time.

When will child custody be decided?

The custody and parenting time order will be finalized either when the parties reach an agreement or following a trial. In the interim, temporary custody and parenting time can be decided between the parties or by the court in a temporary order.

What if we cannot agree on a custody arrangement?

When parents cannot come to an agreement on custody and placement, the court will likely first encourage the parties to attend mediation. If mediation is unsuccessful, he court may also require a custody study or other evaluations to be completed for the court’s review in making a determination.

Can a judge order supervised visitation or no visitation?

A court can order supervised parenting time if a reason for the supervision is found by the court, which is usually to alleviate a safety concern about the children. The supervised parenting time can be supervised by a mutually agreeable person or at a facility.

Do courts favor the mother over the father?

By statute, the court may not prefer one parent or potential custodian over the other on the basis of sex or race of the parent or potential custodian.

In practice, parents may have perceived a preference based on the roles that each parent has assumed. For example, if the court is determining a parenting time schedule for a young infant and the mother is breast-feeding the child, that role will be a large factor for the court to consider.

What should I know before a custody trial?

Each custody trial is very different, and many steps must be completed prior to a trial. These steps may include mediation, and a custody evaluation. You should know what your burden of proof is and how you are going to meet that burden in an appropriate and effective manner.

Can I collect my own evidence to use if my custody case goes to court?

Evidence will need to be presented at trial or at motion hearings. Some of this evidence may be collected by the custody evaluator, depending on what is involved in your case. However, you should not rely on other individuals to present evidence.

In terms of gathering evidence, you have the right to gather evidence through formal and informal discovery. Discovery should be conducted appropriately to gather the necessary information.

What is the Parental Kidnapping Prevention Act?

The Parental Kidnapping Prevention Act is a federal law that requires every state to enforce any child custody determination made in another state. It also prohibits a state from modifying any child custody determination unless it has jurisdiction and the state that issued the previous order no longer has jurisdiction.

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