Archive for the ‘Child Custody’ Category

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Parenting Time

Sunday, February 14th, 2010

Parenting time is defined by statute as “the time a parent spends with a child regardless of the custodial designation regarding the child.” Minn. Stat. 518.003, subd. 5 (2008). In other words, it is the time a parent and child spend together, not the custody label. Previously, it has been called visitation.

At the request of either party, the court must make an order regarding parenting time. Minn. Stat. 518.175 (2008). The order must “grant such parenting time on behalf of the child and a parent as will enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child.” Id. In making these decisions, courts are required to consider the age of the child and the child’s relationship with the parent before the case started. To the extent practical, parenting time orders should also contain a specific parenting time schedule, including holidays and vacations.

In an effort to assist parents in creating parenting time schedules that focus on their children’s developmental needs, the Minnesota Supreme Court published, “The Parental Guide to Making Child-Focused Parenting Time Decisions.” The Guide can be found on the state court website (www.courts.state.mn.us) under the Publications and Reports section. Courts frequently consider the Guide when making parenting time decisions, although it is not binding.

Absent other evidence, a new law makes it a rebuttable presumption that a “parent is entitled to receive at least 25 percent of the parenting time for the child.” Courts typically calculate the parenting time percentage by counting the number of overnights a child spends with the parent. Minn. Stat. 518.175, subd. 1(e) (2008).

Upon a showing that a child is likely to be endangered by his or her parent, the court may restrict or deny parenting time (e.g., require supervised parenting time, limit the duration of parenting time, place conditions on parenting time, etc.).

The fact that a parent is delinquent or not paying child support is not a valid reason for denying parenting time.

by Robert W. Gadtke

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Physical Custody

Friday, February 12th, 2010

Physical custody is defined by statute as “the routine daily care and control and the residence of the child.” Minn. Stat. 518.003, subd. 3(c) (2008).

It can be distinguished from legal custody in two significant ways. First, it deals with the day-to-day care of a child rather than with major life decisions. Second, unlike legal custody, there is no statutory presumption in favor of joint physical custody. In fact, it has been my experience that judges are reluctant to award joint physical custody if the parties are unwilling to agree to it. Currently, there is a Joint Physical Custody Study Group appointed by Minnesota House of Representatives considering the impact of a presumption in favor of joint physical custody. The group is required to issue its report by January 15, 2009.

In many ways, new legislation has rendered disputes over physical custody unnecessary. Now, the label rarely makes any difference. New laws have significantly altered the divorce landscape in Minnesota. While child support used to be calculated as a percentage of the noncustodial parent’s net income – the noncustodial parent was the parent without physical custody – child support is now calculated based upon the parties’ combined gross income. It doesn’t matter who has physical custody.

Don’t lose focus! Parenting time with your child is what is most important. The labels will not help you establish or continue establishing a strong parental bond with your child. Finally, all parents, regardless of their custody label, are entitled receive to the following information:

Each party has the right of access to, and to receive copies of, school, medical, dental, religious training, and other important records and information about the minor children. Each party has the right of access to information regarding health or dental insurance available to the minor children. Each party shall keep the other party informed as to the name and address of the school of attendance of the minor children. Each party has the right to be informed by school officials about the children’s welfare, educational progress and status, and to attend school and parent-teacher conferences. The school is not required to hold a separate conference for each party. In case of an accident or serious illness of a minor child, each party shall notify the other party of the accident or illness, and the name of the health care provider and the place of treatment. Each party has the right to reasonable access and telephone contact with the minor children. The court may waive any of the rights under this section if it finds it is necessary to protect the welfare of a party or child.

by Robert W. Gadtke

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My ex won’t let me see the kids — what can I do?

Thursday, January 28th, 2010

In cases involving children, divorce decrees contain language setting forth each party’s parenting time rights. Many times, however, people have problems enforcing these rights. It can seem as if the divorce decree is simply words on paper. Don’t worry! You do have options.

First, a parent who has been wrongfully denied parenting time can ask the Court to sanction the other parent. A request for sanctions typically includes a request for compensatory parenting time and attorney fees. If the Court finds that parenting time has been wrongfully withheld, it can grant your request.

Second, a parent who has been wrongfully denied parenting time can ask that the Court hold the other parent in contempt – send the other parent to jail. Before the parent can be sent to jail, however, the Court needs to find (after two hearings) that the party is willfully not complying with the terms of the divorce decree. Because sending a person to jail is considered an extreme option, contempt proceedings are usually more time consuming and expensive.

Finally, a parent who has been wrongfully denied parenting time can ask the prosecutor’s office to file criminal charges against the other parent. Minnesota law prohibits a parent from concealing a child from the other parent with the intent of depriving parental rights. Because prosecutors tend to be busy prosecuting violent offenders, it has been our experience that the prosecutor’s office generally leaves such matters to family court, unless the facts are extreme in nature.

by Marcus P. Beyer

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After my divorce is finalized, can I move out-of-state with the kids?

Sunday, January 24th, 2010

No. You cannot move out-of-state with the children unless you either have permission from the other parent to do so or get a Court Order granting you permission to move. Many parents don’t know this. After all, it’s not like the custody police will stop you at the state line and ask for your permission slip. Parents who disobey the law, however, do so at the risk of having to return to Minnesota.

The Minnesota Supreme Court ruled on this issue in 1983. It held that there was a presumption in favor of allowing the custodial parent (i.e., the parent with whom the children reside) to move out-of-state, provided that the purpose of the move was not to interfere with the noncustodial parent’s parenting time. The Court explained that it did not want to meddle in the parenting decisions of the custodial parent. To prevent a move, the noncustodial parent was required to show that the move was not in the best interests of the children. This rule was referred to as the Auge presumption, after the case in which it was announced.

In 2006, the law changed dramatically on this issue. The legislature changed who bore the burden of proof. Now, the relocating / custodial parent bears the burden of proof. He/she must convince the Court that the proposed move is in the best interests of the children. By law, the Court must consider eight (8) factors in determining whether the proposed moved is in the child’s best interests.

These cases present the court with difficult decisions. It must balance the benefit that would presumably come to the relocating parent and the child from the proposed move with the damage that would also be caused to the relationship between the child and the noncustodial parent. There are no easy answers.

by Robert W. Gadtke

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