Archive for Child Custody

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.

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.

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.

The tone of your divorce is important…

October 15, 2013Alimony, Alternative Dispute Resolution, Attorney's Fees, Child Custody, Child Support, Divorce, Spousal MaintenanceLeave a comment

Divorce is one of the greatest stresses a human being can experience. While divorce is a personal decision for adults, it is a wrenching series of crises for their children.

When divorce strikes, the process of disassembling the family places tremendous demands on marital partners. Almost everything in your life that has been stable now must be reorganized. And this uncertainty can leave you in a state of chronic anxiety. But the people who take it hardest are your children. They didn’t pick the marriage, they have no say in the divorce, and sometimes parents ind it impossible to understand what divorce means to them.

Divorce is both a legal process as well as a psychological process. Beyond the obvious financial costs of a divorce are the emotional and opportunity costs that result. The legal process is important but the psychological process and how it is played out by the couple largely determines the tone and the nature of the divorce This is true regardless of whether the divorce involves only financial issues such as property division and alimony (spousal maintenance) or whether it also involves child related issues such as custody, parenting time, and child support.

If the divorce begins badly, it will usually be a long and nasty process. But, if it begins with consideration of the other person, there is a good chance that it will end amicably and constructively. The key is in controlling your emotions and trying understanding the emotional triggers of the other party at the beginning of the process.

An amicable and constructive divorce is possible only when both partners are ready to negotiate. Often times, one person has been thinking about starting a divorce for a long time, and the other person is shocked when he/she find this out.

If you are the one who wants out, you have to give your partner time to adjust, time to mourn and time to explore his/her own possibilities. If you push too fast, your spouse will retreat to the perceived safety of a lawyer who he/she thinks will “protect” her interests. If this happens, it will only increase the time and cost of the divorce. Being patient and considerate in the beginning will speed up the process and the ending.

You and your partner will probably have many misunderstandings and conflicts as you move forward as parents who are apart. It’s not easy for either of you, and your partner is sure to be a jerk at some point, make your life hard, or just complicate everything.

The most important thing to remember is that everything is in flux. What is true today won’t be true tomorrow or next week or next month. The situation is one that will be constantly evolving. It’s easy to feel as though the frustrations that are causing difficulties now will always be the case, but the truth is, that if you are patient, you will likely see things change.

Patience is one of the most effective tools in your possession. By staying calm, considerate, and focused you can gain an advantage that translates into a favorable deal.

Agreement is reached only after each party is ready to move from the wishful into the realm of the possible. Change takes place over time in small, constant, incremental movements. You cannot rush the process and the tone is important.

“Can a court order me to undergo a psych eval?”

April 14, 2009Child Custody, DivorceLeave a comment

The controlling principle in all child custody determinations is the best interests of the child. See Schallinger v. Shallinger, 699 N.W.2d 15, 19 (Minn. Ct. App. 2005). The “best interests of the child” are defined by statute as meaning “all relevant factors,” including the 13 factors listed in the statute. See Minn. Stat. § 518.17, Subd. 1.

The mental health of each parent is an important issue in every child custody and visitation dispute, and the statute explicitly lists this among the 13 factors to be considered. See Minn. Stat. § 518.17, Subd. 1(9).

The case law in Minnesota provides that the Court has broad discretion to analyze a parent’s mental health as part of its determination of custody and visitation. See Meyer v. Meyer, 375 N.W.2d 820, 826 (Minn. Ct. App. 1985) pet. for rev. denied (Minn. Dec. 30, 1985) (The district court has considerable discretion when weighing custody factors relating to mental health); see also Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989) (The district court has broad discretion when determining custody of children); Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995) (The district court is also afforded broad discretion in visitation matters).

The reason for the broad discretion afforded to the District Court in custody and visitation disputes is based on the public policy that, with regard to issues of custody and visitation, the ultimate question is what is in the child’s best interests. See Minn. Stat. § 518.175, Subd. 5. To that end, safety and security top the list detailing the best interests of a child.

While evaluators can recommend psychological testing, the ultimate responsibility to determine the issues to be considered in deciding custody and visitation rests with the Court. In fact, the statute authorizing the investigation and reports available to the Court states that “[i]n contested custody proceedings…the court may order an investigation and report concerning custodial arrangements for the child.” Minn. Stat. § 518.167, Subd. 1 (emphasis added).

Rule 35 of the Rules of Civil Procedure also supports the request for a psychological examination and two requirements before the court can order a psychological examination. See Minn. R. Civ. Proc. 35.01. First, the mental condition of the opposing spouse must be in controversy, and second, good cause must be shown. See Haynes v. Anderson, 304 Minn. 185, 232 N.W.2d 196 (1975); see also Morey v. Peppin, 353 N.W.2d 179 (Minn. Ct. App. 1984) (case involving a child custody dispute in which the mother was required to furnish access to her mental health records, since her mental health was in controversy in the proceedings).

According to the Court in Haynes, an adverse examination cannot be permitted unless the person’s ability to be the custodial parent is in controversy. See Haynes v. Anderson, 304 Minn. 185, 232 N.W.2d 196 (1975).

The Court in Haynes also explained that showing of good cause requires the demonstration of a factual basis to the court as to why the other spouse’s mental condition is in controversy, and that the inconvenience of the examination will be minimal and/or that the inconvenience of the examination is outweighed by the potential impact of the examination on the issues involved. See Haynes v. Anderson, 304 Minn. 185, 232 N.W.2d 196 (1975).

Once the psychological evaluation has been ordered and performed, the examined parent may request a copy of a detailed written report of the examining physician setting out his/her findings and conclusions, together with the reports of all earlier examinations of the same condition. See Minn. R. Civ. Proc. 35.02(a) (2008). After such request and delivery, the examined party, upon request, is entitled to receive from the other party a like report of any examination, previously or thereafter made, of the same mental condition. See Minn. R. Civ. Proc. 35.01(a). If the other party refuses to deliver such a report, there may be sanctions issued. See Minn. R. Civ. Proc. 35.01(a) (2008).

While an order by the Court requiring a party to undergo a psychological evaluation will not by itself, prevent abusive behavior, it will provide the Court and its agencies with important information that can be used to create a custodial and parenting time arrangement for the child that will inhibit and avert dangerous situations for the minor child. See Kuebelbeck v. Humphrey, 402 N.W.2d 202, 204-205 (Minn. Ct. App. 1987) (district court may severely restrict visitation when noncustodial parent has denounced custodial parent and disturbed child during visits), review denied (Minn. April 29, 1987); see also D.A.H. v. G.A.H., 371 N.W.2d 1, 4 (Minn. Ct. App. 1985), pet. for rev. denied (Minn. Sept. 19, 1985) (evidence of abuse supported the district court’s decision which restricted visitation and required the father to submit to psychotherapy prior to further consideration of the father’s visitation status).

The decision to order a psychological evaluation and release of anger management counseling records should be made responsibly; however, a judge or judicial officer cannot be held liable to anyone in a civil action for “acts done in the exercise of judicial authority.” See Linder v. Foster, 209 Minn. 43, 45, 295 N.W.2d 299, 300 (1940) (quoting Stewart v. Cooley, 23 Minn. 347, 350 (1877)). Judicial immunity extends to persons who are integral parts of the judicial process. See Myers through Myers v. Price, 463 N.W.2d 773, 775 (Minn. Ct. App. 1990), pet. for rev. denied (Minn. Feb. 4, 1991).

Minnesota law even extends quasi-judicial immunity to court-appointed psychiatrists, physicians, psychologists, and social workers. See Sloper v. Dodge, 426 N.W.2d 478, 479 (Minn. Ct. App. 1988); see also In re Scott County Master Docket, 618 F. Supp. 1534, 1575 (D. Minn. 1985) (court-appointed psychologist extended quasi-judicial immunity), aff’d in part and rev’d in part, Myers v. Morris, 810 F.2d 1437 (8th Cir.), cert. denied, 484 U.S. 828, 108 S. Ct. 97 (1987). Judicial immunity applies to determinations and acts in a judicial capacity, “however erroneous or by whatever motives prompted.” Linder v. Foster, 209 Minn. 43, 46, 295 N.W.2d 299, 300 (1940) (quoting Stewart v. Case, 53 Minn. 62, 66, 54 N.W. 938, 938 (1893)).

Enforcing a Custody and Support Order from Another State

October 18, 2008Alimony, Child Custody, Child Support, Spousal MaintenanceLeave a comment

Under the Uniform Enforcement of Foreign Judgments Act, adopted by Minnesota, a “‘[f]oreign judgment’ means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.” Minn. Stat. § 548.26. The impact of this is that judgments from other states may be given full faith and credit by Minnesota courts if they have been properly filed in Minnesota pursuant to statute. See Minn. Stat. §§ 548.26 to 548.33.

However, the Court of Appeals clarified that a Minnesota court lacks subject matter jurisdiction to modify a spousal maintenance or child support order when another state retains continuing, exclusive jurisdiction. See Schroeder v. Schroeder, 658 N.W.2d 909 (Minn. Ct. App. 2003)

Therefore, the central issue to be answered is whether the other state has the authority to retain “continuing, exclusive jurisdiction” over the case or whether it can be transferred to Minnesota.

With regard to custody, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) addresses issues of subject matter jurisdiction involving cases such as the one at hand. See Johnson v. Murray, 648 N.W.2d 664, 670 (Minn. 2002). This Act has been adopted by Minnesota at Minn. Stat. § 518D et seq.

The UCCJEA provides that the state issuing a custody decree can retain exclusive, continuing jurisdiction over the decree as long as that state remains the residence of the children or a parent. Minn. Stat. § 518D.202, 518D.203(2).

Specifically, Minn. Stat. § 518D.202 states:

(a) Except as otherwise provided in section 518D.204, a court of this state which has made a child custody determination consistent with section 518D.201 or 518D.203 has exclusive, continuing jurisdiction over the determination until:  (1) a court of this state determines that the child, the child’s parents, and any person acting as a parent do not have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or  (2) a court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.  (b) A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 518D.201.

Similarly, with regard to child support, the Uniform Interstate Family Support Act (UIFSA), which was adopted by Minnesota at Minn. Stat. § 518C et seq, allows the registration of a support order from another state “for enforcement.” Minn. Stat. § 518C.601. Correspondingly, a Minnesota court may modify the foreign support order only if it finds, among other things, that (1) the child, the obligee, and the obligor, do not reside in the issuing state, and (2) the petitioner is a nonresident of Minnesota. See Minn. Stat. § 518C.611(a)(1)(i)-(ii).

The Minnesota Court of Appeals has upheld and applied these principles stating that if neither of the parents nor the child reside in the state that issued an existing child-support order, a court in another state may modify a properly registered order. See Rivera v. Ramsey County, 615 N.W.2d 854, 858 (Minn. Ct. App. 2000)

Federal law is also consistent providing that a party seeking to modify in one state a child-support order issued in another state may only register the order for modification “[i]f there is no individual contestant or child residing in the issuing State”. 28 U.S.C. § 1738B(i).

“How does a court decide custody?”

June 1, 2008Child CustodyLeave a comment

Child custody issues often represent some of the most challenging and emotionally charged issues in family law, which require the assistance of a passionate and empathetic legal advocate.

Under the child custody laws of Minnesota, there are two types of custody, legal custody and physical custody. Custody is primarily about decision making authority, and each parent may be awarded parenting time regardless of the label.

Legal custody is the authority to be involved the major decisions involving the child, which include health care, education, and religious training. There is actually a legal presumption in Minnesota that “joint legal custody” is in the best interests of a child. What that means that the court presumes that is best for a child when both parents have equal rights and responsibilities with regard to the major decisions affecting the child’s life.

Physical custody is the authority to determine the routine daily care and control of the child as well as the residence of the child.

Types of Custody:

Sole physical custody - The child lives with and is under the supervision of one parent, though the other parent often has parenting time.
Joint physical custody - The routine daily care and control and the residence of the child is structured between the parents.
Sole legal custody – One parent has the right and the responsibility to make the decisions relating to the health, education and welfare of a child.
Joint legal custody - Both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child’s upbringing, including education, health care, and religious training.

When parents cant agree on custody the court makes a determination based on its determination of what it believes would be in the best interests of the child. This determination is not merely a practical determination, but involves consideration of 13 specific factors:

(1) the wishes of the child’s parent or parents as to custody;

(2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;

(3) the child’s primary caretaker;

(4) the intimacy of the relationship between each parent and the child;

(5) the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests;

(6) the child’s adjustment to home, school, and community;

(7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(8) the permanence, as a family unit, of the existing or proposed custodial home;

(9) the mental and physical health of all individuals involved; except that a disability of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child;

(10) the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child’s culture and religion or creed, if any;

(11) the child’s cultural background;

(12) the effect on the child of the actions of an abuser, if related to domestic abuse that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and

(13) except in cases in which a finding of domestic abuse has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

The court cannot use one factor to the exclusion of all others, and the primary caretaker factor may not be used as a presumption in determining the best interests of the child.

The court must actually make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.

Professional and experienced custody evaluators are often used to help evaluate and present recommendations to the court.

Strategizing and navigating through this process is very complicated making the assistance of a competent attorney invaluable.