New Best Interest Factors Signed Into Law

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The Minnesota legislature handed a bill to Governor Dayton, which he signed on May 15, 2015, which promulgates new best interest factors for family courts to consider in child custody proceedings.

They are as follows:

(1) a child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development;

(2) any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;

(3) the reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;

(4) whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs;

(5) any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs;

(6) the history and nature of each parent’s participation in providing care for the child;

(7) the willingness and ability of each parent to provide ongoing care for the child; to meet the child’s ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;

(8) the effect on the child’s well-being and development of changes to home, school, and community;

(9) the effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child’s life;

(10) the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;

(11) except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child’s relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and

(12) the willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.

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Should Minnesota Change How Child Support is Calculated?

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There is change in the air, as it pertains to calculating child support in Minnesota. Currently, child support is calculated based upon the combined income of two parents, and a computation of fixed child support based upon each parent’s share of combined income.  If the children reside primarily with one parent, the non-custodial parent pays a certain sum of support figured by considering the number of children, the parents’ combined income, and the non-custodial parent’s share of the parents’ combined income.

Where the change may come is how the parenting schedule factors into the child support calculation.  Currently, there are three options, based upon how much parenting or custodial time the child support obligor has with the children.  Zero to ten percent; ten to forty-five percent; and more than forty-five percent. A parent’s obligation is reduced (by 12%) if he or she has parenting time more than ten percent of the time.  There is no reduction if one’s parenting time is less than ten percent.  If one’s parenting time is greater than 45 percent, that is considered essentially 50-50 custody, and child support is calculated in a starkly different manner, usually resulting in a much lower sum of support paid from one parent to the other.

The options have been called “cliffs” because there is a big difference between having your kids twelve percent of the time and having your kids forty percent of the time; yet the child support is calculated the same in either instance.

This version of the statute has been in place for several years, and I have found it to be a user-friendly system for parents, attorneys and judges.  Under the previous statute, even small changes in the parenting schedule had an impact on the amount of child support.  Therefore, parents would haggle over one or two overnights per month in order to influence the calculation of child support.  Under the current statute, there is no incentive to haggle except in the relatively unusual circumstance of butting up against the ten percent or forty-five percent thresholds.

The change that is being considered is to bring back the graduated schedule that would factor into the calculation small changes in the parenting schedule.  That model of child support calculation has found favor in Oregon, where it has been in effect for some time.  It is surprising to me that making the change from “cliffs” to the graduated calculation based upon small increments of parenting time has not been troublesome.  I would expect it to cause more haggling between parents over the parenting schedule.  Here’s hoping if Minnesota makes the change, Minnesota doesn’t regret it.

 

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Irretrievable Breakdown of the Marriage

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When petitioning for a divorce in Minnesota, the requesting party must assert under oath that there has been an “irretrievable breakdown of the marriage.”  That is to say, the marriage cannot be saved.

There is no need for both spouses to make this assertion; the law requires only one spouse’s claim that the marriage cannot be saved.  The family court does not give consideration to whether attempts have been made to save the marriage.  Many couples pursue marriage counseling, agree to a trial separation, and/or make efforts to reconcile, before calling it quits.  Other couples do not.

It is worth considering, though, that the law – requiring only one spouse to call the marital breakdown irretrievable – reflects reality to a strong degree.  A successful marriage calls for both spouses to be fully committed to the continuation of the marriage.  Figuratively, both spouses must have both feet “in.”  If even one of the spouses has one foot “in” and one foot “out,” it may be only a matter of time before the marriage breaks down.

That said, when the divorce is not a mutual decision, and only one spouse has declared the end of the marriage, the other spouse may be left reeling.  The divorce process does not provide for a meaningful way for the responding party to stop the divorce from happening.  Even couples for whom the breakup is a mutual decision often have difficulty reaching agreement on terms of the divorce.  But when the decision to end the marriage is not mutual, an amicable divorce is all the more difficult to make happen.

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Possible Legislative Change to Statutory Income Expectation

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The current child support statute authorizes the family court to impose upon parents an income threshold. That is, if the parent is able to work, the court may impute income to that parent in the amount of 150% of minimum wage, assuming 40 hours per week of employment. Child support is supposed to be calculated by factoring in both parents’ incomes, so if a parent does not have income, by choice, then the court has the authority to calculate child support as though that parent has income.

The statute may be amended to reduce the court’s imputation of income, basing the income threshold on minimum wage (100%) instead of 150% of minimum wage, and basing the threshold on 30 hours of work per week instead of 40. The revised factors probably more accurately reflect what one actually experiences when seeking general employment prospects. If passed, the new legislation would take effect in 2015.

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Moving the Children Within the State

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Previous posts have addressed the issue of moving minor children outside of Minnesota, which requires either the consent of the other parent or permission of the family court.  That rule suggests that a parent residing with children in the Twin Cities can move the children to Warroad, Thief River Falls, or Duluth without consent or permission, but would not be allowed to move to Hudson or Somerset, Wisconsin.  Clearly it would make more sense to devise a rule that involves a mileage radius, rather that state lines.

But the fact is, for some families a small move has a huge impact, and for others a big move does not make much of a difference.  For instance, if a mom and a dad have a 50-50 custody arrangement, and one of the parents moves outside the school district, the change might result in the children bussing to and from one parent’s home every day instead of bussing to and from each parent’s home on that parent’s respective parenting days.  Conversely, if the children are primarily in the custody of a parent who resides in Minnesota, and the non-custodial parent resides in California, then the children’s relocation from Minnesota to Nevada will have minimal impact.

The law regarding a move out of state is really a technicality.  The practical reality is that any relocation that imposes on a parent’s co-parenting rights and responsibilities should be addressed by both parents in a neutral setting, such as mediation or a parenting neutral.  That way, the situation will not erupt into a courtroom battle.  If the proposed change happens, all of the family members need to be on board with the change.  Otherwise, it is likely only a matter of time before new disputes will arise.  Any co-parenting arrangement can survive the impact of a change if the parents and the children address the proposed change with an open mind.

One of most common factors regarding a proposed move for children is whether it impacts where the children attend school.  Family court judges and custody professionals tend to lean in favor of children attending the same school as before, unless both parents agree to a different school.  Preserving the children’s attendance at the same school, or school district, as in previous years is not a dispositive factor, but if a relocation involves changing schools, it will typically require a relatively compelling basis that pertains to other aspects of the children’s interests to swing in favor of the change.

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Family Courts Are Not Fulfilling ICMC Timing Goals

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When a marriage dissolution case is first filed with the court, most metro area Minnesota courts schedule the case for an Initial Case Management Conference (ICMC).  This is a non-contested, non-litigious step in the process that gives the parties an opportunity to meet with a family court judge or referee – in most cases, the judge or referee who will preside over the case from start to finish.

The parties and the court determine at the ICMC how the parties will proceed with the case, including efforts to settle the contested issues of the case outside of court.  The ICMC model was developed in recent years to overcome poor patterns of case management and even poorer patterns of parties’ conduct in court.  The ICMC model encourages the parties to be cooperative, and less combative, when dealing with child custody and co-parenting issues, and financial issues.

When the ICMC model was devised, it was contemplated that the ICMC would take place within two or three weeks of filing the case.  One reason for that time frame is the potential for the parties to have contested issues that need to be addressed by the court.  Until the court holds an ICMC, the parties are typically unable to obtain any relief from the court except by agreement of the parties, unless the moving party can show urgent need for relief in an emergency.

Some courts are able to meet that timing standard, and others fall short but are able to proceed with the ICMC within one month.  Unfortunately, in some instances, the courts are unable to come close to the intended time frame for the ICMC.

For example, last month, I learned from a colleague that their case was blocked to one of the metro area judges who proceeds with an ICMC only upon request.  That is to say, this judge will allow parties to proceed with contested hearings right away, unless the parties jointly request the scheduling of an ICMC.  In mid-May, the parties requested an ICMC, and the first available date for the ICMC was… August.

This is very telling.  A judge’s calendar so clogged with contested hearings that the judge cannot accommodate an ICMC for more than two months.  Many of the contested hearings clogging the court’s calendar might be avoided by bringing the parties before the court for an ICMC.

I do not mean to ignore the constant challenge the family courts face trying to handle the heavy, steady flow of cases.  But the failure to provide for timely ICMC’s only perpetuates the court’s overflowing dockets.  Conversely, when courts are attentive to providing for timely ICMC’s, the courts are maximizing the chances that new cases will proceed, for the most part, outside of the courtroom.

In sum, if the family courts are overwhelmed by their case load, they need to consider what an effective remedy timely Initial Case Management Conferences are.

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Divorce Using Paralegal Service Lacks Cost-Benefit

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When someone (or some couple) is getting divorced, and has no disputes, the case often is suited for being drafted up by a paralegal service.  Divorce paralegal services tend to be low-cost, but are able to complete the divorce paperwork in a professional manner, so it appears to be a good combination.

The problem is, you get what you pay for.  Many divorce attorneys (me included) have seen people come in, weeks or months after the divorce is done, with issues that are not properly addressed in their divorce decree.  If there are no contested disputes at the time of the divorce, that does not mean that a divorce decree can be entered without addressing potential disputes.  For example, if one spouse stays in the home, but delays buying out the other spouse until the house sells or the spouse in the home refinances the mortgage, what happens if there are no good offers to buy and the spouse in the home cannot obtain financing for a new loan?

It is possible that the time and expense of correcting the problem later may be no greater than the time and expense involved in preventing the problem in the first place.  But oftentimes, the parties disagree on how to correct the problem, and then both parties incur the cost of hiring attorneys and/or paying for mediation or other dispute resolution processes.

If couples who do not have present disputes want to strike the best balance between cost and benefit, each party is well-served to consult with an attorney, even if they do not retain an attorney to represent them in the divorce.  That way, the attorney can draft the stipulated decree, or review a decree drafted on behalf of the other party, and advise the client about how to best address the issues, prevent avoidable disputes, and give some thought to potential future scenarios.

The process of consulting with an attorney is more costly than a paralegal service, but less costly – both in time, expense and hassle – than dealing with procedural problems after the divorce is finalized.

 

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Same Sex Marriage and the Residence Requirement

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In order to have standing to proceed with a marriage dissolution in Minnesota, the petitioning party must have resided (or been domiciled) in Minnesota for at least 180 days.  When gay marriage was legalized in Minnesota, however, a new exception to that rule emerged.  The reason for the exception is the fact that there are jurisdictions elsewhere that do not recognize same sex marriages.

If the marriage was performed in Minnesota, and both spouses reside where gay marriage is not recognized, either party can proceed with the divorce in Minnesota.  The case is, of course, governed by Minnesota law, and not the law where the petitioning spouse resides.

 

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Divorce Corp. Review

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The point of going to see a documentary at a movie theatre is to blend entertainment with getting some insight into the documentary’s topic, right?  Divorce Corp. is neither entertaining nor insightful.  But it probably is not surprising to hear me express that point of view, since Divorce Corp. is meant to be an exposé of the divorce industry, and I am a divorce attorney.

I am not, however, frightened at the notion of people attending the movie in droves – not only because this kind of movie never attracts droves.  The movie’s premises are correct.  Custody evaluators’ recommendations should not be bought (and the evaluators should not be porn stars).  Family court judges should be impartial (and they should not physically abuse their own children).

Personally, I was pleased that the closest reference to the great State of Minnesota was mention of the MMPI (Minnesota Multiphasic Personality Inventory).  My plans not to practice in Texas, Indiana, Tennessee and California will not change.  The fact is – while I know there are threads of greed, destruction and bad faith that exist in any state – in twenty years of family law practice, I have zero first-hand knowledge of a custody evaluator’s recommendation being bought, or a family court judge giving preferential treatment to a crony.  On the contrary.  Anyone involved in family law who would engage in the spotlighted conduct portrayed in the movie would have a horrendous reputation – in Minnesota at least.  More importantly, the conduct that earns a good reputation – that is necessarily the mainstay of real-life family law – has no role in the movie, not even a cameo appearance.

Like almost every other movie ever produced, this documentary does not deal in the dullness of real life.  The closest it comes to doing so is interviewing folks from Iceland and Sweden, where apparently every last citizen who was ever divorced is living happily ever after, having spent more on their groceries than on their divorce.  While it would have been more insightful to compare the “ugliest” American divorces to the “ugliest” European divorces, that wouldn’t sell tickets, garner much attention, and certainly wouldn’t fulfill the purpose of the producers of throwing the American divorce industry under the bus.  So we are left with a comparison of the worst of the worst American divorce cases set against the dull, uneventful, amicable divorces of Europe.  (I hate to break it to the producers, and the viewers, but there are, in fact, amicable divorces occurring in the U.S., and contested divorces occurring in Europe.)

For what it’s worth, after watching the movie and then returning to work the following day(which happened to include a meeting with a custody evaluator), the movie did make me reflect on the real-life work that divorce professionals do in this community.  But so do the continuing education courses, family law conferences, and consult group meetings that I attend on a regular basis.  Long before the producers embarked on this project, divorce professionals were being taught how to carry out family justice.  The movie intends to mobilize reform without doing anything to suggest what that reform might be.  How should we prevent ugly cases from happening?  What new form of family justice will supplant the current system, and make happy campers of all of the movie’s interviewees?

To a great extent Minnesota has made great advances to improve family justice in the last ten to fifteen years.  These days, most family courts engage in case management focused on resolution outside the courtroom.  The processes include an Initial Case Management Conference (conducted by the judge in an informal, non-adversarial setting) and Early Neutral Evaluations (in which child-related or financial issues are not just mediated, but evaluated by neutrals).  My day-to-day practice involves more Early Neutral Evaluations than custody evaluations; more mediations than trials; and out-of-court settlements that outnumber divorce decrees issued by the judge by more than 10 to 1.  If the producers had provided any airtime to what family law reform should look like, it would (or should) include coverage of how family law is currently practiced in Minnesota.

My recommendation, if you are considering a viewing of Divorce Corp. at the multiplex?  August: Osage County and Saving Mr. Banks.

 

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Child-Inclusive Mediation

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As an attorney, I have been involved in countless parenting disputes, mediations and evaluations in which the issue of a child’s preference is considered, or ruled out, as a factor.  The Minnesota custody statute sets forth the child’s preference as a factor to be considered, “if the court deems the child to be of sufficient age to express preference.”  See Minn. Stat. Section 518.17, subs. 1(a)(2).

For many custody professionals, the issue is not so much the child’s preference as it is the child’s perspective.  The notion of a preference contemplates that the child is choosing between the parents.  That is one of the worst things that anyone could compel a child to do, regardless of whether it is the parent, the family court judge, an attorney, or a custody professional pushing for the child to do so.  Moreover, for every instance in which the child’s bona fide preference has a true bearing on the determination of the parenting plan, there are many instances in which a parent – maybe both parents – have a mistaken belief that the child (a) genuinely has a preference and (b) the child’s preference should be a determining factor in the parenting plan.

Child-inclusive mediation is designed to address head-on the child’s perspective.  In so doing, the child’s preference, if it has a true bearing on the determination of the parenting plan, can be factored in.  The model provides for the involvement of a mediator and a child consultant.  The child has contact only with the child consultant, not with the mediator, and certainly not with the family court or either parent’s attorney.  What the child consultant learns from his or her meeting with the child is then shared with the parents and the mediator so that the child’s perspective can be given proper attention as the parents attempt to resolve parenting disputes.

In December 2013, I took mediator training for child-inclusive mediation, the first training of its kind in Minnesota.  I am eager to pursue child-inclusive mediation in 2014 and in future years, either as a mediator or as an attorney representing one of the parents.  The process holds a great deal of promise for properly balancing the interest of keeping children out of parenting disputes, but allowing children to have a voice in the parenting plan that emerges from those disputes.

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