Minnesota does not have a statute that mandates a presumption of 50-50 custody. The fact is, with or without a statutory presumption, 50-50 custody is common and, I believe, getting more and more common over time. What Minnesota statute does provide for is a minimum of 25 percent parenting time, absent evidence suggesting otherwise.

It is reasonable to figure that many couples will agree to 50-50 custody, and in many cases the court will order 50-50 custody. And that where the agreement is not a 50-50 arrangement or where the court does not order a 50-50 arrangement, the outcome might be 60-40 instead, or 70-30 or 75-25. All depending on (a) what the parties agree to; or (b) what the court determines to be in the child’s best interests based on the court’s understanding of applicable facts and circumstances.

Conversely, if the agreement of the parties, or the court’s decision, is 80-20, 90-10, or 100-0, how does that mesh with the statute that contemplates a minimum of 25 percent? In the case of agreement of the parties, the court and the statute will not preclude the parties from determining for themselves a stipulated “fair justice” in their case. If one parent lives out of state (or country), for example, and the annual parenting schedule, as agreed by the parties, provides for that parent to have less than 25 percent parenting time, no harm – no foul.

In the case of the court making a determination, it should be noted that the statute contemplates a minimum of 25 percent parenting time absent other evidence. If the court makes findings regarding the best interests of the child that weighs in favor of 80-20, 90-10 or 100-0, it would have to do with the fitness of the non-custodial parent, or their work schedule, or there geographic proximity, or some combination thereof.

One of the statutory factors that the family court must consider in child custody cases is 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. This addresses one of the most common questions that people ask about child custody: how old does the child need to be to decide where they live? The answer is 18. But… if they are old enough to express a reliable preference, their preference may be considered by the court. Many custody professionals use the adage, “Kids have a voice, but not a choice.”

If the child is, say, three, they are too young to express their feelings in a manner for the court to give serious consideration. But you try to tell an older teenager where to live, against their will, and the parents are likely to have more trouble than if they adhere to the child’s wishes.

When parties divorce, and one of the parties keeps the marital home, the other party typically signs a quitclaim deed. The quitclaim deed is a transfer of the property without a closing. The quitclaim deed signed pursuant to divorce contemplates that there is consideration for the signing party’s relinquishment of interest in the home. That consideration may be a cash buyout, or it may be traded for another asset such as retirement funds. Or, the signing party may have an inchoate interest in the home, which is the situation when the signing party did not contribute to the equity in the home but nominally has a legal interest in the residence because of being married to the equity owner.

Whatever the case, the Summary Real Estate Disposition Judgment (SREDJ) is a document signed by the court, not one of the parties. The SREDJ encapsulates the provisions of the divorce decree that involve the real estate, without all the other provisions (including personal matters) so that it can be filed with the county recorder and provide clear title. The SREDJ is an alternative to the quitclaim deed that is especially helpful if, for whatever reason, the relinquishing party cannot or will not sign the quitclaim deed.

In family court, if there is a dispute over child custody, the court will often use the findings and observations of a custody evaluator to guide and support the court’s ruling. Commonly, the custody evaluator is a neutral third party agreed upon by the parties, or appointed by the court (or both). It is also an option for a party (or each party) to have their own expert.

The custody evaluator will meet with the parties, meet the child(ren), observe each party with the child(ren), and correspond with collateral contacts, such as other family members, the child’s teachers, the child’s primary doctor, and any other third parties who can provide relevant information regarding the child’s best interests. The evaluator will ultimately produce a custody report that can be offered into evidence for the family court’s consideration in rendering a decision.

The fact is, the custody evaluation is a worst-case (or at least, worse-case) scenario. It takes many months, can be heart-wrenching (for the parents and the children) and is enormously expensive. Parents are well advised to pursue mediation, early neutral evaluation, a moderated settlement conference, or the appointment of a parenting consultant. These models provide the parties with insightful recommendations and, in some situations, binding decisions to bring a custody dispute to resolution. All of them are voluntary, and cannot be mandatorily imposed on the parties. And ultimately, both parties have the right to resort to a court trial as a last resort. But almost all family court judges will themselves call out the advantages of resolutions that occur outside of court, and discourage the parties from leaving the decision to the court, and the trial process.

While there is a statute that addresses the rights of the family court judge to interview children in chambers, it is rare for this to occur. In years past, there may have been more frequent occasions when the court would undertake an “in camera” interview. But custody professionals tend to discourage such a direct involvement of a child in the process of a contested custody proceeding because of the stress, an potential trauma, to the child.

The reader may wonder about the potential trauma to the child in the absence of an interview in chambers. But few family court judges have the proper background and training to conduct an interview in an age and developmentally appropriate way. Most family court judges would self-identify accordingly.

In recent years, the unlikelihood that a judge would be willing to proceed with an interview, coupled with the unlikelihood that the parties and their attorneys would agree to the same, has resulted in interviews in chambers all but going extinct. There are many alternatives to an interview in chambers, including custody evaluations, early neutral evaluations, brief focused assessments, parenting consultants, custody mediation, and child-inclusive mediation. An interview in chambers has the “up” side of being relatively expeditious and relatively inexpensive. But the disadvantages almost assuredly outweigh the advantages.

The family court will appoint a guardian ad litem to address the concerns of a minor child when there are issues before the court pertaining to a child’s well-being and best interests. Under the applicable statute, the family court’s appointment of a guardian ad litem is either MANDATORY or PERMISSIVE. Guardian ad litem appointments are mandatory when the court has reason to believe that a child is a victim of domestic child abuse or neglect. Such appointments are permissive when the family court judge or referee is desiring the assessment, report and recommendations of a guardian ad litem pertaining to a case.

In recent years, the guardian ad litem offices of the various courts in the Twin Cities metro area have been flooded with mandatory appointments and have, therefore, been largely unable to service permissive appointments. That is to say, even if a certain family court wishes to make a permissive appointment, the court will often have to opt against it because there are insufficient resources to provide services in permissive cases.

In 2015, a pre-existing law was amended to make it mandatory for family courts to issue a Certificate of Dissolution to be attached to the divorce decree in every case. A certified copy of the Certificate allows a party to certify their divorce, name change, etc. without needing to use the entire decree and without needing to unnecessarily disseminate or reveal the additional personal information in the decree.

The Certificate of Dissolution contains the case caption, file number, names of parties, prior names, name changes (if any) and the divorce date.

The Certificate of Dissolution must be issued by the court either from the court’s directive to a party or attorney to draft the certificate for the court’s review and approval, or from the court’s own preparation and issuance.

Once a divorce is final, there is no changing the allocation of assets and liabilities, and modifying child custody, parenting time, child support and spousal maintenance requires a substantial change in circumstances. The exception to this is what is called “reopening the decree.” Under statute, the grounds for reopening are limited, and would require compelling circumstances involving: mistake, inadvertence, surprise, neglect, new evidence, fraud, or other grounds that render the judgment void or moot.

When someone has committed to an agreement in mediation, they will almost never qualify for a reopening. When a mediated agreement is reached, the process is specifically designed to avoid mistakes, inadvertence, inattention to contrary evidence and fraud. Moreover, family courts are especially loath to “mess with” mediated agreements, even if one or both parties is/was not represented by counsel.

In most divorce cases, each party pays their own attorney’s fees, or both parties pay the fees out of joint funds. If one party is paying an attorney without the other party’s knowledge, but does not have access to sufficient funds, they may borrow funds from a friend or family member (or obtain a gift from that person). But as for the prospect of one party actually having to pay the other party’s fees out of their own pocket: this only happens in two ways, by statute. One is a “need-based” award of fees from the court. The other is a “conduct-based” award of fees.

A “need-based” award has three required findings that the court must make:

1. The fees were incurred in good faith.
2. The requesting spouse lacks the means to pay their fees.
3. The paying spouse has the means to pay the requesting spouse’s fees.

A “conduct-based” award only requires the court to rule that a party has engaged in misconduct that unnecessarily contributes to the length and expense of the proceedings.

In many cases, one party believes the other party is being unreasonable in negotiations, or even in refusing to negotiate. That situation may not be sufficient for the court to find misconduct. Everyone is entitled to their “day in court.” More typically, a “conduct-based” award of attorney’s fees will be based on a failure to disclose assets (or to do so in a timely manner), or to miss important court-ordered deadlines.

The basic goal in a divorce case is to get from “before” to “after.” “Before” is married, and “after” is divorced. Divorced means having a final plan in place for child custody, co-parenting arrangements, spousal maintenance, disposition of the marital homestead, allocation of debts and the handling of each party’s attorney’s fees, among other issues.

But what about the “during?” If it takes six months to a year to get from “before” to “after,” then a temporary order is likely to be necessary. A temporary order would have provisions such as the parenting schedule pending completion of the case, or how cash flow should be handled while the matter is pending? For instance, making the house payment until the house is sold. Or, paying an attorney’s retainer fee for purposes of having representation on the case.

The Order for Temporary Relief provides the temporary custody, temporary parenting time, temporary support, temporary attorney’s fees, and any other relief that needs to be in place in a pending divorce case, up until the final decree is entered. Most of the time, the parties agree to the terms of the Temporary Order, although they may need a mediator, child custody neutral or financial neutral to assist in arriving at terms. But if the parties are unable to reach agreement, the family court will hear the matter and issue an order.

The temporary provisions are not precedent for purposes of the final order. At least, not formally. It is intended that the final terms are based on long-term considerations, while temporary provisions are based on shorter-term considerations.

But the parties may agree to adopt the temporary terms as final terms. For instance, the party paying support may be willing to continue the same amount, but not a higher amount. Or a parent may agree to continue the temporary parenting schedule, but not an adjusted schedule that requires them to make a concession. In each of these instances, the other party may agree to adopt the temporary terms as a final agreement rather than engage in a contested dispute over final terms. In essence, the temporary terms may end up serving as a kind of informal precedent, for purposes of reaching an agreement to final terms.

If the family court makes the decision on final terms, the family court will (or at least, should) not use the temporary order as precedent. If the family court’s final order matches the temporary order, it would necessarily require that the family court assesses the facts and circumstances, and makes findings, to support the order. That is, the family court cannot just adopt the temporary order as a final order without such findings, unless the parties expressly agree to those terms.