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.



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.


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.


Moving 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.


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.