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.

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.


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.


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.


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.

Onset of Divorce When There is Domestic Violence

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Domestic violence causes the end of many marriages.  When the breaking point comes, it often involves a restraining order.  In many cases, the breakup is triggered by an incident in which someone calls 911.  But in some cases, especially when minor children are involved, it is preferable to avoid a restraining order and/or a 911 call.

The 911 call is necessary when circumstances reach a heightened and urgent level of conflict.  A restraining order is necessary when an abuser is not deterred by the principle of breaking the pattern of abuse and doing the right thing.  So in many cases,  a more orderly breakup is not possible.

When a more orderly breakup is possible, though, it can come about by the more constructive actions of one or both of the parties.  If the abusive party acknowledges the abusive dynamic of the relationship, that goes a long way towards facilitating a smooth separation.  That provides for a recognition, at a calm and reasoned point in time, that a transition needs to happen – a transition that will benefit both parties since both parties benefit from ending the abusive patterns.

Also, if the abused party resolves to make a change and end the abusive relationship when circumstances are not at a heightened urgency, that party can transition into a safe environment without invoking the assistance of peace officers.

Best yet, if both parties mutually acknowledge that a non-abusive relationship is not possible, then both parties can take the steps necessary to make an orderly transition that avoids the tension and conflict of a 911 call or proceedings for a Domestic Abuse Order for Protection or harassment restraining order.


Mayo Provides New Twist With Marriage Requirement for Same Sex Benefits

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The Mayo Clinic has adopted a policy requiring gay employees to get married to stay eligible for health insurance.  The Clinic has offered same sex benefits for years, and when gay marriage was not legal, it stood to reason that the employee would not have to be married.  Now, with gay marriage legal, the requirement places gay employees on par with other employees who must be married to qualify for such benefits.  It provides a different twist to the idea of marriage equality, which usually pertains to rights, rather than obligations.

Since there remain states which do not recognize gay marriage, including two states (Florida and Arizona) where Mayo has employees, there may be an impetus for some gay employees to relocate to a non-marriage-equality state to avoid the marriage requirement.

It is expected that other large companies will follow suit and establish similar policies.

Child Support is for Children’s Expenses

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When child support is calculated in accord with the guidelines of Minnesota statutes, both parents’ incomes are considered.  The statute provides a table for the basic amount of support that children need, based upon the combined income of the child’s two parents.

When the parents have equal, or nearly equal, parenting time, the amount of child support is less, often substantially less, than when the child resides primarily with one parent.  The reason for the lesser amount is the expectation that both parents will contribute to the child’s basic needs on a day-to-day basis.  The higher earning parent pays a small sum of basic support to the lower earning parent, and both parents contribute to the child’s expenses over time.  If the parents have similar incomes then there is little or no child support changing hands.

When the child resides primarily with one parent, the non-custodial parent pays child support to the other parent and is not expected to contribute to normal living expenses for the child, other than the child’s food and entertainment expenses during that parent’s parenting time.  The parents may need to reach agreement about substantial expenses such as summer camps, school trips, or big purchases, if such expenses cannot be paid by the custodial parent from that parent’s income and the other parent’s child support payments.

If the statutory calculation of child support creates a troublesome dispute for parents, they may be able to agree to an alternative that avoids any need for child support.  For some separated couples, a better resolution can be devised by agreeing on the child’s basic expenses, and determining a fair division of those expenses, whether by category, by relative percentages, or by creating a schedule for taking turns shouldering that burden.  One parent may be responsible for clothing, school lunches, and school activity fees; and the other parent is made responsible for music lessons, sport registration and equipment.  Or the parents can maintain a joint bank account for children’s expenses, and make deposits in accord with their share of the responsibility (which may or may not be based upon income).  Or a higher earning parent can cover the children’s expenses for the first two months or each quarter, and the lower earning parent can cover the last month of each quarter.

If the parties agree on what expenses the children incur that are tangible, then the intangible expenses that parents incur, such as housing that accommodates the child, and the additional food and utilities that a child brings, can be absorbed by each parent.

Defense of Marriage Act (DOMA) Struck Down by U.S. Supreme Court

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By a 5-4 decision, the U.S. Supreme Court has struck down the Defense of Marriage Act (DOMA).  Justice Anthony Kennedy issued the opinion, and was joined by Justices Breyer, Ginsburg, Kagan and Sotomayor.

The Court also declined (in a 5-4 decision) to address a federal court’s reversal of Proposition 8 in California, which clears the way for same-sex marriages in California to be legally solemnized.  That decision was issued by Chief Justice John Roberts, joined by Justices Scalia, Ginsburg, Breyer and Kagan.