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Being a Hero in Your Kid’s Story

Wednesday, December 1st, 2010

Parenting During a Divorce – Being a Hero in Your Kid’s Story

If you are the parent of a young child, you have probably listened to more children’s music than you care to admit.  The simplistic, often overly repetitive nature of the sound can stick in your head.  Trying to avoid catching the tunes is futile.  They will find you.  They will infect you.  And just as soon as you begin to recover from one jingle, another will strike without warning.

Every once in a while, as I go to Court to represent a divorce client, I find myself humming one of these songs.  A few minutes after I begin, I usually find myself thinking about the words in the music.  I think about the meaning of the song I am humming and whether it sends an appropriate message to my children.  Sometimes, I am aghast at what I discover.  Other times, I am impressed by the depth of the simple message.

The song “Hero” by the children’s group, The Okee Dokee Brothers, is one of those songs that makes me proud to be a listener of children’s music.  And, as a divorce attorney, it’s a song that I wish my clients (and divorcing parents everywhere) could hear.  The music may be more to your child’s liking, but the message will leave you inspired.

As the title suggests, the song is about heroes – the kind of make-believe heroes found in movies or stories.  The heroes we all grew-up wanting to be but never could quite actualize.  Your kids will recognize some of the names (Peter Pan, Superman, and Robin Hood) and you will recognize the rest (Yoda, Frodo, and James Bond).  The song explains that even though we can’t fly through the air like Superman or use the Force like Luke Skywalker, we do have the power to be a hero in our kid’s story.  All we have to do is show-up, listen, and care.  That’s it.  No other magical powers required.

The stress of divorce can sometimes leave parents feeling isolated from their children.  It doesn’t matter if you are dad who loses custody of a child or a mom who has to exchange her kids three days a week.  Divorce means separation.  Separation means loss.  And loss can cause pain.

But, separation and loss do not mean that you can’t be a hero in your kid’s story.  You can.  Whether you choose to do so depends on how you spend your time with your kids.  As we know from the stories, superheroes discover their superpowers in unusual ways.  For some parents, their superpowers can remain hidden for a long time, only to be discovered when they begin parenting alone.

Make the choice to be a superhero in your kid’s story.  They deserve it!

If you are interested in hearing the song, you can purchase it on iTunes for $0.99.  It is on the Okee Dokee Brothers’ album entitled, “Take it Outside.”  As of yesterday, I couldn’t find the song on Youtube.  If you want to read the lyrics, go to http://www.okeedokee.org/lyricsTIO.html

Robert W. Gadtke is a Minneapolis divorce attorney.  His practice focuses on helping clients protect their children and get a fair financial settlement.  His ebook, 10 Top Divorce Mistakes and How to Avoid Them, can be found on his website.  He also maintains a blog devoted to divorce and family law. www.gadtke.com

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Minimizing the Effects of Divorce on Children

Wednesday, June 2nd, 2010

If you are reading this posting, chances are pretty good that you are either involved in, or are considering getting, a divorce. If so, there are a few things you need to know. Ending a marriage can be a difficult process. It is one that can hurt everyone involved, especially children. Research has consistently shown that more children of divorced parents have behavioral problems than children from nondivorced families. Depending upon which study you believe, children from divorced families demonstrate more acting out, aggression, depression, difficulty with peers, and school problems than other children. Some research has found as many as 20 to 25 percent of children from divorced families have behavioral issues.

But, before you decide to stay in an unhappy marriage for the sake of your children, you need to know that staying in the relationship has consequences too. Research suggests that the worst problems for children result from situations involving high parental conflict – even when that conflict occurs within the context of a marriage. Children who live in high conflict families tend to have more severe behavioral problems than children from any other type of family structure, including children from divorced households. Children of these high conflict families tend to be more depressed, more impulsive, and more hyperactive, than even those at-risk children from divorced families.

Thinking of throwing in the towel? Before you do, it is important to understand that the damage caused to children in divorced and high-conflict families does not a result from a change in the family structure per se. In other words, it is not the parents’ separation that actually harms the children. It is other things that really do the damage. Children are damaged by instability and fighting, which often accompany a divorce, not the physical separation. Things like school changes, financial issues, relocation, and poverty have all been linked to decreased outcomes in children.

Because the damage is not a result of the divorce itself, there are things that you can do to help protect your children. Remember, if 25 percent of children from divorced families are in trouble, that means that 75 percent of them are not. Here are some of the things that you can do to give your kids the best chance for success:

Tips for Minimizing Damage to Children

1. Ensure Effective Custodial Parenting: As frustrating as it may seem for the soon-to-be-noncustodial parent, it is essential that you support the well-being of the custodial parent. For children to do well, custodial parents have to be functioning at a relatively high level. Single parenting is a difficult task. Depression, anger, or economic troubles can distract from effective parenting. Your kids depend on it.

2. Minimize Conflict between the Parents: This is the single most important factor in promoting positive outcomes for children. Studies have shown that children of high conflict families are two to four times more likely to have behavioral issues than children more generally. Sometimes, not fighting is the best decision you can make. Understand, though, that this won’t be easy. It will take time to figure out. Divorce causes a lot of hurt feelings. In the five years following a divorce, only 25 to 50 percent of parents manage to effectively engage in cooperative co-parenting. As many as 40 percent of divorced parents end up parallel parenting, not in conflict but not cooperating either. Try hard to put your children’s interests above your own. It is possible for people to manage their anger, even if they don’t like their ex-spouse.

3. Don’t Badmouth the Other Parent: Contrary to popular belief, badmouthing your ex-spouse does not make your child like you more. If anything, the opposite is true. Children hate it when parents badmouth each other. No matter how much you dislike your ex-spouse, your child does not (and will not) feel the same way. You only hurt your child’s feelings when you badmouth the other parent. Do not explain the other parent’s short-comings. Do not ask them to take sides. And do not ask them to keep secrets.

Raising children is hard work. Raising them in the context of a divorce can be even more challenging. Don’t give up.

by Robert W. Gadtke

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New Hope for Non-custodial Parents

Saturday, May 15th, 2010

On March 10, 2009, the Minnesota Court of Appeals gave new hope to non-custodial parents seeking to prohibit former spouses from changing the residence of a minor child to a new location within the State of Minnesota. It had previously been believed that as long as the custodial parent moved the child’s residence to a new location within the State, courts were largely without power to restrict the move. A sharp distinction had been drawn between interstate moves (i.e., moves from Minnesota to another state) which were often prohibited on account of the negative consequences to the child, and intrastate moves (i.e., moves from one location in Minnesota to another location in Minnesota), which often were not. A common fear amongst many non-custodial parents was that the custodial parent would decide, unilaterally, to move the child’s residence to a distant and far-away corner of the State of Minnesota, making the current parenting time schedule unworkable.

In Schisel v. Schisel, the Court of Appeals confronted the question of whether a trial court has the authority to restrict the location of a parent’s in-state residence when the parties are awarded joint physical custody of the minor children. In rejecting the mother’s arguments that it did not, the Court of Appeals explained that Minnesota Statutes Section 518.17 (the “best interests standard”) requires trial courts to make orders that are just and proper concerning the minor children’s “physical custody and residence.” Because the term “residence” is commonly understood to mean “place” or “geography” (not just the person “with whom” a child resides), the Court held that trial courts have authority to restrict a parent’s in-state residence as long as the restriction is necessary to serve the child’s best interests.

What does this mean for you? It means that the best interests of the child continue to serve as the guiding light for all court decisions involving children. It means that courts can prevent parents from moving from Edina to Ely if the move harms the children. And, it means that the decision-making authority is back in the trial courts, where judges can examine the parties and assess their motives.

by Robert W. Gadtke

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She won’t let me see our daughter.

Wednesday, April 21st, 2010

Dear Family Law Lawyer: Last year, my girlfriend had a baby. Things were going “ok” for us until last week when we had a fight. She kicked me out of her mom’s house, where we had been living with our daughter for the last few months. Now, she won’t even let me see my daughter. She claims that I have “anger problems.” My friends say that I should call the police because she is infringing on my legal rights. What should I do? Tom in Winona, Minnesota.

Dear Tom: Sit down. We need to talk. Remember back in high school when you learned that the government couldn’t discriminate against people based solely on their sex? Remember learning how the constitution prohibits discrimination and that it’s illegal to refuse to hire someone simply because of their gender? Well, when it comes to the rights of unmarried fathers in Minnesota, sex discrimination is alive.

Under Minnesota Statutes Section 257.541, when a child is born to a woman who is not married to the child’s father at the time of the birth, the mother is awarded all custody and parenting time rights to the child. This is true even if the father were present at the child’s birth, had his name added to the birth certificate, and signed a recognition of parentage form. The father simply has no rights to see or visit his child until a judge signs an order giving him such rights. Unfortunately, your girlfriend has a solid legal basis, if not a moral one, for preventing you from seeing your daughter.

You need to contact an attorney as soon as possible.

by Robert W. Gadtke

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Modification of Custody and Mediation

Friday, March 26th, 2010

If you are thinking about modifying custody (see our prior post on that topic), be sure to check your divorce decree or custody order to see if it contains a mandatory mediation clause. Nowadays, many divorce decrees contain provisions requiring parties to first attempt mediation before filing a motion with the Court.

In my experience, many disputes can be (and, in fact, usually are) resolved by the parties simply by taking the time to sit down and talk to one another about their concerns. Because of past hostility, however, parties are sometimes reluctant to do this. The assistance of a good mediator or attorney might be one way to reach a settlement without having to go to court. Settlements not only make for quicker resolutions, they also usually save you money.

Unfortunately, many times mediation clauses are overlooked in divorce decrees. Parties bring their motion without first attempting mediation. We have successfully argued for awards of attorneys fees on behalf of clients when the other party fails to first attempt mediation. The Minnesota Court of Appeals has also held that it is reversible error for a judge to rule on the merits of a party’s motion if the parties have not first attempted mediation when required by the divorce decree.

by Marcus P. Beyer

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Out-of-State Moves

Sunday, March 14th, 2010

Occasionally, Marc Beyer and I will take the opportunity to present different legal perspectives on a particular issue. In most cases, the court could reasonably rule in favor of either party. Thus, it is essential for you to understand the arguments that might be made by opposing counsel.

This post focuses on whether a custodial parent, after a divorce, should be allowed to move out-of-state with the minor child. It responds to Marc Beyer’s post dated August 22, 2008.

Under Minnesota law, a custodial parent may not remove a minor child from the State of the Minnesota for the purpose of changing their residence unless they first obtain permission from the other parent or get a court order allowing the move. Minn. Stat. 518.175, subd. 3 (2008). If the purpose of the move is to interfere with the other parent’s parenting time, the court shall not permit the child’s residence to be moved to another state. Id.

In considering whether to grant a parent’s request to move, the court is required to apply a best interests analysis. In doing so, the court must consider the following factors:

(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;
(6) whether the relocation of the child will enhance the general quality of the life for both the custodial parent seeking the relocation and the child including, but not limited to, financial or emotional benefit or educational opportunity;
(7) the reasons of each person for seeking or opposing the relocation; and
(8) the effect on the safety and welfare of the child, or of the parent requesting to move the child’s residence, of domestic abuse, as defined in section 518B.01.

Prior to 2006, noncustodial parents were required to prove that an out-of-state move was not in the best interests of the child. This could be tough to do. Courts resolved all doubts in favor of allowing the move. If you couldn’t prove that the move would be detrimental to your child, you couldn’t stop it.

In 2006, the legislature fundamentally altered the way courts approach requests for permission to move out-of-state. The burden of proof was shifted from the noncustodial parent to the custodial parent. In other words, the custodial parent now bears the burden of proving that an out-of-state move is in the best interests of the child. All doubts are resolved in favor of denying the move.

Different judges seem to require different amounts of evidence to satisfy the burden of proof for out-of-state moves. All things being equal, some judges allow custodial parents to move out-of-state if the custodial parent has a job offer in the other state. Some judges do not. Some judges require less evidence to move to Wisconsin. Some judges do not. Whether a parent is granted permission to move depends largely upon the particular judge assigned to your case.

In my opinion, judges should rarely grant the custodial parent permission to move. Underlying all custody and parenting time decisions is the idea that courts are supposed to act in the child’s best interests, not in a way that is convenient or fair to the parents. The likelihood that a child can sustain a meaningful and quality relationship with both parents after an out-of-state move is seriously diminished. A child’s right to stay connected with both parents should supersede a parent’s right to live with a new boyfriend or to accept a new job in a different state.

The decision to have a child is one that should not be taken lightly. If an individual has a child in the State of Minnesota, and if the other parent has developed a significant relationship with that child, the law should deem the custodial parent to have waived his or her right to make selfish decisions regarding his or her place of residence. To hold otherwise would not only encourage parents to fight about custody labels (if only to prevent a future move), but it would also cause irreparable damage to the child.

Presumably, these were the types of issues that the legislature sought to prevent with the 2006 statutory changes.

by Robert W. Gadtke

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The Preference of the Child

Monday, March 8th, 2010

We are sometimes asked by clients how much weight, if any, is given to a child’s preference regarding who they want to live with after a divorce is finalized. The answer depends almost entirely upon the age and maturity level of the child.

By law, the reasonable preference of the child is one of the “best interests” factors the Court considers in making custody and parenting time decisions, if the child is old enough to express a reasonable preference. Court decisions have held that the preference of an older, teenage child is “an overwhelming consideration” when making these types of decisions.

Unfortunately, there is no magic age at which a child gets to “choose” where they want to live. We have had judges tell us that “13 year-olds vote with their feet” and that they were not going to force the child to live somewhere she didn’t want to. We have also seen cases where 14-15 year olds are found too immature for the court to attach much weight to their preference. Each case and each judge is different.

The reason(s) for the child’s preference can also be relevant. It is not uncommon for one parent to provide less supervision, to have fewer rules, and to generally let the child be more unruly. If this is the reason for the child’s preference, the Court may well conclude that the child’s preference is not a reasonable preference, and give it less weight.

Determining a child’s preference can also be difficult. Many times, both parents claim that the child wants to live with them. This is usually the result of a child telling both parents what they want to hear. It is not a good idea to ask a child (especially a young one) where they want to live. Courts do not like it when children are pressured by their parents into making these types of decisions.

Attempting to determine the child’s preference without putting them in the middle is what makes child preference issues so difficult. The best advice is to talk to your lawyer about strategies for determining the preference of the child.

by Marcus P. Beyer

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Modification of Child Custody

Friday, February 26th, 2010

Generally speaking, the Courts like finality to apply to the divorce decrees they enter. Because the Courts do not want litigants filing motions to change custody on a whim, there better be a good reason for a motion to modify custody.

For starters, no motion to modify custody may be heard for at least one year following entry of the decree. If a motion to modify custody has been made, no subsequent motions may be made for two more years. However, these time restrictions do not apply if the Court finds that there has been “persistent and willful denial or interference with parenting time, or has reason to believe that the child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development.” Because many motions to modify custody allege these types of facts, the exception can seem to swallow the rule.

With some exceptions, motions to modify custody must allege “endangerment,” as alluded to above. That is, the present custodial arrangement must endanger the child(ren) in some way. Stated differently, there is a presumption that the custodial arrangement will stay as it is, unless the noncustodial parent can prove endangerment. This is a high standard – higher than the “best interests” standard for initial determinations of custody where there is no presumption in favor of either parent.

If contested, motions to modify custody can be a lengthy process. The moving party must first allege facts in an affidavit which will be considered by the court at a motion hearing. The Court must then determine whether the facts as set forth in the affidavit, if true, rise to the level of endangerment. If they do, then the matter is set on for an evidentiary hearing (trial). This process can take months.

One lesson is this: Do not agree to custody terms in a divorce decree with the idea that you can try to modify custody down the road. While you can certainly bring that motion, the bar for modifying custody on a post-decree basis is much higher than the bar for an initial determination of custody during the divorce/custody proceedings.

by Robert Gadtke

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The Basics of Child Custody

Saturday, February 20th, 2010

In Minnesota, child custody proceedings are typically started with the filing of a divorce petition, a petition for legal separation, or a paternity petition. Before a court can make child custody decisions, however, it must have jurisdiction over the child. See Jurisdiction under the Child Custody Category.

Assuming that the jurisdictional requirements are satisfied, the court must address three issues: legal custody, physical custody, and parenting time. See Legal Custody, Physical Custody, or Parenting Time under the Child Custody Category.

Regardless of the issue, all decisions involving children are made by the court based upon the “best interests of the child.” This is a term of art – it has a specific legal meaning. It is based on factors set forth in the law.

It is important for you to understand that decisions involving children are not based upon what is fair to the parents. The decisions are not intended to reward one parent for a history of good parenting or punish another parent for working a lot during the marriage. Rather, the decisions are intended to preserve stability and continuity in the life of the child.

Divorce can be traumatic, especially for children. To the extent possible, the law seeks to minimize this trauma by making decisions that are in “the best interests of the child.”

Once a custody decision is made by the court or agreed to by the parties, it can be difficult to change. See Custody Modifications under the Child Custody Category. Do not agree to custody or parenting time schedules without first talking to your attorney.

by Robert W. Gadtke

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Legal Custody

Thursday, February 18th, 2010

Minnesota law defines legal custody as “the right to determine the child’s upbringing, including education, health care, and religious training.” Minn. Stat. 518.003, subd. 3(a) (2008).

If no domestic abuse has occurred between the parties, the law presumes that the parties will share joint legal custody. Sharing joint legal custody means that both parents have “equal rights and responsibilities . . . to participate in major decisions” involving the child’s upbringing. Minn. Stat. 518.003, subd. 3(b) (2008).

If domestic abuse has occurred between the parties, the law uses a rebuttable presumption that joint legal custody is not in the best interests of the child. Domestic abuse includes, but is not limited to, physical harm, assault, or the infliction of fear of imminent physical harm or assault.

A court may award joint legal custody over the objection of a parent if the court makes detailed findings of fact explaining why an award of joint custody serves the best interests of the child.

by Robert W. Gadtke

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