Posts Tagged ‘Child Custody’

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Careful Who’s Listening . . .

Friday, January 21st, 2011

Don’t let anyone try to convince you that celebrity gossip watching is a waste of time.  It’s not.  Following the ups and downs of our Hollywood friends can be many things, but if you are involved in a family court case (or likely to be involved in one anytime soon), a waste of time it is not.  You can learn a lot by watching the embarrassing, often public implosion of a star’s life.  The never ending abyss that is the Mel Gibson and Oksana Grigorieve’s custody battle is a perfect example.

Earlier this week, celebrity gossip powerhouse TMZ reported that Mel Gibson’s attorneys had subpoenaed Oksana’s former bodyguard to testify at a deposition in the case.  Exactly why Gibson’s former girlfriend needs a full-time bodyguard is beyond the scope of this post, but the bodyguard she did employ apparently accompanied her everywhere – including to private meetings with lawyer.  According to news reports, Gibson’s legal team believes the bodyguard knows all of Oksana’s dirty secrets, including legal advice given to her by her attorneys.  If true, he would be the ultimate inside source – akin to a talking fly on a wall.

More importantly, though, the bodyguard’s knowledge is discoverable by Gibson’s legal team.  Why?  Because there is no “bodyguard–protectee privilege” that exists in the law.  Normally, any information shared with a lawyer would be protected from disclosure by the attorney-client privilege.  As one of the most sacrosanct principles in American law, the privilege is intended to allow people to be brutally, sometimes painfully, honest with their lawyer without fearing that the information will be used against them.

But, the rule does have its limits.  Foremost among them being situations where a third party is present at a meeting.  In those instances, the privilege is lost.  The third-party can be questioned, even subpoenaed.  They can be forced to explain everything they heard or saw.  It can lead to some fairly embarrassing moments.  This is exactly what Gibson’s legal team hopes will happen in his case.

At our firm, we always suggest that family members or friends who accompany clients to meetings remain in the lobby.  As emotionally difficult as the divorce process can seem, destroying the attorney-client privilege is almost always worse.

by Robert W. Gadtke

Robert W. Gadtke is a Minneapolis divorce attorney with the law firm of Gadtke & Beyer.  His practice focuses on helping clients protect their children in custody cases and getting 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, child custody, and family law issues.

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Developing a Parenting Time Schedule

Tuesday, November 23rd, 2010

When I work with clients to help develop an appropriate parenting time schedule, I usually begin by looking backwards, by examining the family’s history of care.  How did the parents care for the children before the family court was involved?  What types of patterns or routines did they use?  Who provided what types of care?

The initial backward looking focus is not intended to reward a parent for past conduct – family courts don’t reward people for past care – instead, it provides a baseline assessment of what has been happening in the family.  If mom or dad (or anyone else) has been providing most of the children’s care for the past ten years, it might not make sense to suddenly shift that care to someone else.  Be honest.  It can be hard to admit who has been caring for the children.

After we have a good understanding of what has been happening, we can begin to focus on what should happen in the future.  We try to project which parent (or parents) would be best suited to care for the children going forward.  As a starting point, we examine whether the parent who has provided the majority of the children’s care in the past remains best positioned to provide the care in the future?  Sometimes the answer is yes.  Other times the answer is no.  It depends on the facts.  As children grow older, their developmental needs change.  The parent who changed diapers, warmed bottles, or prepared meals might not be the parent best equipped to care for a rebellious teenager.  But, then again, stability might be exactly what the troubled teen needs.  It is impossible to say in the abstract.

When approached honestly, the process of determining who best can provide for the children’s future care (down to the nitty-gritty details) usually leads to a concrete and workable parenting time schedule.  For example, if we learn that dad works every weeknight until 9:00 p.m., overnight parenting time during the week might not be practical.  Conversely, if we learn that dad doesn’t work on Mondays or Tuesdays, having him care for the children on those days (instead of putting them in daycare) seems to be the right decision.

Remember, parenting time is about staying connected with the children.  It is not about achieving mathematical equality with a former spouse.  In many cases, a fifty-fifty parenting time schedule would be simply unworkable – if not for the parents then for the children.  But, an unequal parenting time schedule is not always a bad thing.  Many times it simply means that the parents are putting the needs of their children before their own.

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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Dividing Personal Property – Staying out of the Muck

Wednesday, June 23rd, 2010

Divorces are difficult. There can be, and usually are, many difficult issues to resolve. If you want to come to a resolution with your soon-to-be ex-spouse sooner rather than later, I encourage you to focus on the bigger picture issues and to “stay out of the muck” by not worrying about the issues that probably are not all that important in the end.

What does this mean? Well, often times it means not squabbling over issues like personal property. Ideally, divorcing spouses should be able to divide items of personal property without involving lawyers or the court. Like the rest of the marital estate, personal property items should be equally divided. Hopefully, the parties can be adult enough to make this division on their own. If there are two couches, then each party should get one. If your spouse takes the only microwave, then buy a new one. Make copies of the family photos. Too often, parties focus on issues like this, when they should be focusing on more important issues like custody, child support, or spousal maintenance, if they apply.

Judges absolutely detest getting involved with personal property disputes. More than once, I have heard a Judge say that if the parties cannot agree on the personal property division, then he/she will simply order an estate sale and the parties can equally divide the proceeds. Judges will not take this approach to the more important issues like custody and spousal maintenance. If those issues are contested, that is what the Court will want to focus on, and you should too.

by Marcus P. Beyer

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Out of State Child Support Orders

Saturday, May 29th, 2010

Sometimes, following a divorce or paternity adjudication, one or both of the parties may decide to move to a different state. While out-of-state moves present a number of important challenges – in many cases, it can become nearly impossible for the noncustodial parent to remain actively involved in the child’s life – people often ask about potential child support implications. Can the existing child support order be changed or enforced in the new state? How will child support be calculated in the future?

In Minnesota, these types of issues are governed by the Uniform Interstate Family Support Act (“UIFSA”). See Minn. Stat. § 518C. And, in most cases, the answers are extremely fact specific. What is true in one case may not be true in another case. It is difficult to generalize. It is important for you to consult an attorney about the facts of your case.

Recently, however, the Minnesota Court of Appeals attempted to define the outer edges of the out-of-state modification doctrine. In Hennepin County v. Hill, the Court confronted the question of whether a Minnesota court could modify the duration of a child support order originating from Mississippi, once the order had been registered in Minnesota for purposes of enforcement and modification. In rejecting the father’s request that his child support obligation be shortened, the Court explained that the law treats the duration of a person’s child support obligation as a “nonmodifiable” term. Because the term is “nonmodifiable,” and because the term originated from a Mississippi order, the father was required to continue paying child support until his obligated ended, as determined by Mississippi law.

Labeling the duration of a child support order as “nonmodifiable” is important because states have different rules regarding how long a person is obligated to pay support. In Minnesota, for example, a child support obligation typically ends when the child turns age 18, or age 20 if they are still in secondary school, whichever is later. Minn. Stat. § 518A.26, subd. 5 (2009). Parents do not pay child support while a child is in college. But, in Mississippi, the law obligates a parent to pay child support until the child turns age 21, with certain limited exceptions. The difference, which is three (3) years of after tax child support payments, can be substantial.

The case is Hennepin County v. Hill, 2010 WL 274651 (Minn. Ct. App. 2010).

by Robert W. Gadtke

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New Research Suggests Growing up Without a Father Changes Brain Development

Tuesday, May 25th, 2010

According to an article published Tuesday in the Wall Street Journal, German scientists have discovered that growing up without a father actually changes the way brains develop in a small guinea pig-like rodent known as the Degus. Researchers studying Degu brain development found that Degu raised in single parent families have shorter nerve branches than those raised in two parent households. The pups raised by single parents also exhibited more aggressive and impulsive behavior than those raised by two parents. They lacked impulse control, and “when they played with their siblings, they engaged in more play-fighting and or aggressive behavior.”

The researchers noted that while the pups raised in single parent families received about the same amount of attention from their single caregiver as they did in two parent families, overall attention was significantly less for the single parent pups. The researchers urged caution, however, in extrapolating these findings to human children, as human thinking and decision making is more complex.

Going forward, researchers intend to focus their energies on determining whether the pups brains can be “rewired” by introducing substitute caregivers to help repair the damage. The research was published in the Journal of Neuroscience. The article is titled, “This Is Your Brain Without Dad.” It was written by Shirley S. Wang.

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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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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Tough Cases…

Saturday, March 6th, 2010

Recently, I had lunch with a colleague who practices in a different area of the law. He asked me whether it was difficult, from an emotional standpoint, to be a divorce lawyer. “Yes,” I replied, “It can be difficult, very difficult. To some extent, I think everyone who practices family law is affected by the cases they handle.”

His question got me thinking. Why are some divorce cases so emotionally difficult? Why is it that some cases seem to provoke intense, even visceral reactions from the parties (and judges), while other cases get resolved relatively quickly and easily.

I think the difference depends upon whether the case involves a dispute over children. It depends upon whether one parent is unjustly calling into question the parenting style and ability of the other parent, and it depends upon whether parenting issues are being used as a bargaining chip in other contexts.

Divorce is a uniquely terrible – although sometimes highly necessary –legal action. In contested custody, it pits parents against one another, requiring courts to decide who is the “better parent.” More troubling, it can also put kids in the middle, forcing them to answer questions about who they want to live with.

For me, the toughest divorce cases involve selfish parents. Those parents, who, for whatever reason, don’t understand that their children’s best interests are more important than their own subjective notions of abstract fairness. Children need routine, consistency, and predictability. How would you like to shuttle back and forth between two houses, being forced to remember (and anticipate) whether you have everything you need this weekend because you can’t go back to the other house until Sunday. It’s a tough life. Anyone who has been a traveling salesman can attest to that fact. Please don’t misunderstand me, though. Sometimes this type of schedule works just fine. But, in those cases, it works fine because it’s in the best interests of the children, not because it’s fair to the parents.

These cases are difficult. They are also extremely fact specific. It is impossible to generalize about what should happen in any particular case. There are almost as many reasonable custody / parenting time schedules or options as there are divorce cases.

by Robert W. Gadkte

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