In the Matter of Oberg v. Bradley

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(Filed August 3, 2015) (Court of Appeals)

Respondent Mother obtained an Order for Protection against Appellant Father from the district court on behalf of the parties’ minor son after the district court admitted the son’s out-of-court statements. Appellant sought review for violating his right to due process because he did not have adequate notice that Respondent would offer the out-of-court statements.

The Court of Appeals affirmed, ruling that the standard of proof for an order for protection is a preponderance of evidence. The Court of Appeals observed that the domestic abuse statute does not specify a standard of proof, but the preponderance-of-evidence standard is implied, since that standard is specifically required to modify or vacate an order for protection. The Court of Appeals rejected Appellant’s claim that the out-of-court statements should not have been admitted and that, absent the statements, the evidence was insufficient for issuance of the order.

In the Matter of Dakota County and Floding v. Gillespie

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(Filed July 22, 2015) (Supreme Court)

Appellant Mother, who was receiving child support from Respondent Father, began receiving Social Security dependent benefits upon Respondent’s retirement. The child support magistrate granted Respondent’s motion for modification, offsetting his obligation by the dependent benefits received. The district court clarified the magistrate order to expressly provide for benefits already received by Appellant to be applied to Respondent’s prospective child support obligation. The Court of Appeals affirmed, ruling that the application of past benefits to Respondent’s prospective obligation did not constitute a retroactive modification of child support, which is not authorized by the support statute, other than while a modification motion is pending.

The Supreme Court reversed, ruling that the subtraction of the dependent benefits is an integral part of the child support calculation, which means a dollar-for-dollar offset of the benefits is not necessarily accurate. Moreover, the statutes do not provide a provision for accommodating the commencement of Social Security benefits, so the offset must necessarily occur in conjunction with a modification under the applicable statutory provision.

There was a dissenting opinion emphasizing that the receipt of benefits (not a modification motion) is the essential triggering event for the subtraction of benefits that, under the statute, must occur. Therefore, the dissent would have affirmed the Court of Appeals ruling.

Possible Changes to Child Support Guidelines

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There are two bills that have been introduced in the Minnesota Legislature.  One would establish a permanent advisory committee on child support guidelines.

The other one is a bigger substantive change.  Child support would be calculated based on the income shares of the parents, like it is now.  But the parenting expense adjustment would be much more variable than the current statute.

Currently, there are only three parenting expense adjustments: one for cases in which parents share custody equally (or nearly equally); one for cases in which one of the parents has little or no parenting time with the child(red); and one for all other cases.

The new statute would create a graduated parenting expense adjustment based upon the specific parenting schedule.  The adjustment would be based on the number of overnights each parent is the on-duty parent over the course of the year.

I am concerned that the new statute will create a bigger issue for parents to dispute.  Many times separated parents argue over custodial time, not because of what is good for the children, but because of the impact is has on the amount of child support.  Under the current structure, this issue (to fight about) is only regarding whether the threshold for “nearly equal” parenting time has been met.  Under the new statute, that issue could be a bone of contention in many more instances, because any change to the number of overnights results in a change in the amount of child support.

The bill was to be heard in legislative committees this past week.  Watch this space.

New Legislation Has Revised Typical Expectation of Parental Income

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The Minnesota legislature recently amended the statute that courts use when imputing income to parents.

Minn. Stat. Section 518A.32, sub. 2(3) now provides for considering “the amount of income a parent could earn working 30 hours per week at 100 percent of the current federal or state minimum wage, whichever is higher.”  Previously the statute had a provision for the amount of income a parent could earn working 40 hours per week at 150 percent of current minimum wage.

The previous statute’s calculation of monthly income was $2,080.  The amended statute provides for one-half that amount, suggesting that in today’s economy, one can be expected to earn $1,040 gross per month.


Early Neutral Evaluation – Is Joint Physical Custody More or Less Likely?

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A colleague of mine recently expressed her belief that custody neutrals conducting Early Neutral Evaluations are almost uniformly recommending joint physical custody.

Early Neutral Evaluation (ENE) is the process in which a team of two neutrals (one man, one woman – to avoid gender inequality) works with a divorcing or separating set of parents to devise a co-parenting arrangement.  Each parent presents his or her view of the facts and circumstances of the children, and what each parent believes is in the child(ren)’s best interests.  Then the neutrals weigh in on what they believe is a suitable custody arrangement, based upon their respective experiences and opinions about the facts and circumstances presented by the parents.

My colleague’s observation suggests that the ENE process leans heavily in the direction of joint physical custody.  My own anecdotal experience suggests otherwise.  I have seen ENE recommendations go in all different directions.

Joint physical custody is most likely to occur when both parents are “fit” parents (for instance, largely free of criminal, chemically dependent and abusive tendencies) and when the parents live in relatively close geographic proximity.  However, if any of the children are under the age of four, some custody professionals hesitate to recommend joint physical custody.

I have been involved as an attorney for moms, dads, and plenty of each who desired to receive a recommendation of sole physical custody in their favor.  The parameters mentioned above regarding joint physical custody certainly do come into play; but every case is unique, so it is difficult to know which factors will be given the most weight.

It is my belief that my colleague’s perception that many ENE’s result in joint physical custody is more likely a sign that many cases in general are resulting in joint physical custody.  Years ago, joint physical custody was unlikely unless couples agreed to that designation, or at minimum, demonstrated an ability to cooperate with each other.  These days, when each parent seeks sole custody, the resolution may be to grant each party joint physical custody, even if the parents do not get along well.  A parenting neutral may be appointed to assist the parties in resolving parenting disputes that arise after the court case is done.


New Child Custody Factors Signals New Perspective

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When the statutory factors to be considered in child custody cases were revised by the Minnesota Legislature earlier this year, the substance of the changes did not appear to be significant.  It is interesting to consider, though, how the revised factors have changed the philosophy underlying custody determinations.  I heard a local custody professional discuss how it is not the child’s job to “accommodate” his or her parent’s divorce; it is the parents’ job to accommodate the child’s best interests.

That is to say, in the past, the parents were the focus, since the case regarded what rights each parent had to custody and parenting time.  Nowadays, the focus is on the child, and how to serve the child’s best interests, notwithstanding what will serve the parent’s interests.  This approach contemplates that a parent’s interest will be (or should be) served indirectly by serving the child’s interests.


Where the Children Should Go to School – Part 2

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Hard to believe it’s been seven years since I blogged about this last.  Not much has changed on the subject in seven years, but there are trends that have become more common in practice over time.

As mentioned previously, the decision about where children will attend school tends to lean in favor of where the children previously attended.   The most common exceptions are (a) if the parents agree about the child attending a different school; or (b) neither parent resides in the school district of the previous school anymore.

One of the current trends coming from custody professionals is to avoid imposing a change of school on the children by encouraging both separated parents to reside within the child’s school district.  That way, if one parent has the need to relocate, the other parent can provide residency for the child to remain a student at their current school.

The other trend is for the parenting plan to contain a provision that a parent who relocates outside of the school district to be responsible for transporting the child to and from school on their custodial days.  In some cases, this may impact how many school-night overnights the relocating parent will have.  Even if the parent is ready and willing to provide the transportation to and from school, the time a child spends in the car, particularly early in the morning, can put a chilling effect on the relocating parent’s parenting time.  The farther away from the school the parent resides, the bigger this issue becomes.

Finally, any effort that one parent makes to avoid naming the other parent as a contact on school forms is heavily frowned upon.  Even a parent who has relatively infrequent parenting time is entitled to be informed and updated about the child’s school and how the child is progressing in their education.  On occasion, a custodial parent will list their current spouse (the child’s step-parent) as the “other” parent on the registration documents.  Both courts and custody professionals will nearly always insist that the child’s natural parents be the contacts listed in the student’s school file.


New Law Regarding Tax Dependency Exemptions

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Minnesota Statute Section 518A.38 has a new subdivision; one pertaining to income tax dependency exemptions.

“Income tax dependency exemptions.

(a) The court may allocate income tax dependency exemptions for a child and require a party who has the child in the party’s physical custody for more than one-half of the calendar year to provide a properly executed declaration that releases the party’s claim to the child as a dependent under section 152(e) of the Internal Revenue Code of 1986, as amended, to the other parent.

b) In determining the allocation under paragraph (a), the court shall consider the

(1) the financial resources of each party;
(2) if not awarding the dependency exemption negatively impacts a parent’s ability
to provide for the needs of the child;
(3) if only one party or both parties would receive a tax benefit from the dependency exemption; and
(4) the impact of the dependent exemption on either party’s ability to claim a premium tax credit or a premium subsidy under the federal Patient Protection and Affordable Care Act, Public Law 111-148, as amended, including the federal Health Care
and Education Reconciliation Act of 2010, Public Law 111-152, and any amendments to, and any federal guidance or regulations issued under, these acts.

(c) The court may place reasonable conditions on a party’s right to claim an exemption, including a requirement that the party remains in compliance with a child support obligation.

(d) A party with less than ten percent of court-ordered parenting time shall not be entitled to receive a dependency exemption except by agreement of the parties.

(e) The court may issue an order to modify a prior allocation of an income tax dependency exemption upon a showing of substantial change in the factors under paragraph (b).

(f) If allocation of an exemption is contested, the court must make findings supporting its decision on the allocation.

(g) When a party has claimed an income tax dependency exemption in violation of a court order or applicable law, or has failed or refused to provide a properly executed written declaration that releases the party’s claim to a child as a dependent to the other party as required by a court order, the court may issue an order requiring compensation in
the amount of the lost benefit and costs and reasonable attorney fees, to the party who was wrongfully deprived of the income tax dependency exemption. A motion for such relief must be brought within a reasonable time, but in no event later than three years from the date of the filing of the return in which the exemption was claimed or could have
been claimed. A party who brings a meritless motion for such relief may be ordered to pay costs and reasonable attorney fees to the other party.”

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.

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.