Archive for Child Custody – Page 2

Where the Children Should Go to School – Part 2

· August 12, 2015

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.

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Categories : Child Custody

New Best Interest Factors Signed Into Law

Posted by Gerald Williams

· May 17, 2015

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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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Categories : Child Custody

Moving Children Within the State

Posted by Gerald Williams

· October 13, 2014

· 1 Comment

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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Categories : Child Custody

Child-Inclusive Mediation

Posted by Gerald Williams

· January 15, 2014

· 1 Comment

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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Categories : Child Custody, General Family Law, Mediation

Child Support is for Children’s Expenses

Posted by Gerald Williams

· July 29, 2013

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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.

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Categories : Child Custody, Child Support, Parenting Time

When Child Care Costs End

Posted by Gerald Williams

· June 2, 2013

· No Comments

Under Minnesota law, parents have the obligation of financially supporting their children. The child support statutes provide for basic child support, child care support and medical support. Basic child support is the sum paid by one parent to the other for basic expenses of the child or children. Child care support is the allocation between the parents of day care, before-school and after-school expenses. (Medical support is the allocation between the parents of a child’s health insurance and health care expenses.)

Most of the time, when a child is old enough not to attend daily child care, the parents agree that time has come, and the child is no longer enrolled in day care. In some cases, what begins as a looming dispute about continuing a child in day care is resolved by the parents’ mutual desire to unload the financial burden of child care costs.

So what if the dispute persists? There is no set age when a child no longer needs supervision. It depends on the individual child and his or her level of maturity. Moreover, many custody neutrals and parenting consultants are precluded from addressing financial issues. The issue of child care is both a co-parenting issue and a financial issue.

The issue has the potential to land before the family court for decision. That is the result if the parents disagree about whether to incur the child care costs AND the parents cannot agree on a method for resolving the dispute outside of family court. If the parents cannot agree about the decision, they would be well-served to at least agree on how to arrive at the decision, whether that be mediation or a custody neutral who is appointed to make the decision. As with so many other family law issues, the family court should be the last resort.

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Categories : Child Custody, Child Support, Parenting Time

The Value of an Attorney During Divorce

Posted by Gerald Williams

· March 26, 2013

· No Comments

Times are tough. Many families and individuals have struggled the past few years because home values have dropped and jobs are difficult to come by. Financial problems add to or are the cause of marital discord. Not surprisingly, when couples decide to divorce, many find the idea of hiring an attorney distasteful, if for no other reason than that it will be an additional financial cost. More and more divorcing parties decide to represent themselves during the divorce process. For some families, this makes good sense. If the issues are straightforward and you agree on all relevant terms, then you may be able to effectively fill out the paperwork and complete the process on your own. Minnesota makes all of the necessary forms available online here: http://www.mncourts.gov/selfhelp/?page=342.

Unfortunately, the issues are not always as straightforward as they seem and the agreement is not always as complete as it should be. We see two common situations in which parties have represented themselves during a divorce — or some portion of it — and have required the services of an attorney after the fact. One situation is when parties fill out the divorce paperwork on their own, but the Court refuses to sign off on it. Sometimes the Court tells the parties what is wrong with the paperwork, but it can be confusing to identify the problems and know how to fix them. Judges often suggest or strongly urge one or both parties to hire an attorney to review and revise the paperwork. The set-back can be frustrating.

The second common scenario presents an even tougher issue for unrepresented parties. Not uncommonly, self-represented parties will submit an agreement to the Court and it will be accepted and approved. If you are not aware of your rights at the time of the divorce, but then later realize that you have gotten an unfair deal, or are stuck in a difficult situation, it can be hard to go back and remedy the situation. Common pitfalls include issues with real estate, retirement account transfers, custody or parenting time agreements, and child support collection.

The difficult thing about property division issues is that property division is final upon entry of the divorce. If an attorney is involved with the drafting of the divorce agreement, the attorney can offer advice to protect you against common contingencies. For example, what if the house doesn’t sell? Or, what if you or your spouse are unable to refinance? Who will pay for unforeseen fees associated with a QDRO (the separate document that provides for both spouses to share in a retirement account)? While hindsight is 20/20, there is often little a party can do to remedy a property-related problem that has popped up after the divorce is final.

With the child-related issues like parenting time and child support, the Court always retains jurisdiction to revisit these issues if need be. However, the standard for changing the agreement can be quite high. For example, it may not be enough to realize after-the-fact that the parenting time schedule doesn’t work well for your child(ren). Unless the other parent agrees with you and you jointly undertake to change the schedule, it may remain “as is” unless you can show that it endangers the child. When it come to enforcement of child support, it is likely that you will be able to update the Court Order to promote enforcement of it, but it will cost you additional money to do that. If it were drafted correctly initially, that cost could be avoided.

For these reasons and more, we strongly recommend that anyone thinking about or starting the divorce process hire an attorney. At a minimum, it makes good sense to hire an attorney to either draft the agreement that you and your spouse have reached or to have the attorney review the paperwork that you and your spouse have filled out together. As they say “an ounce of prevention is worth a pound of cure.”

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Categories : Child Custody, Child Support, Divorce, General Family Law

The Uniform Deployed Parent Custody and Visitation Act

Posted by Gerald Williams

· February 24, 2013

· No Comments

In July 2012, the Uniform Law Commission approved of the Uniform Deployed Parent Custody and Visitation Act, to address issues that arise when a family court matter involves a parent serving in the military. The Uniform Law Commission (ULC), established in 1892, is responsible for such Acts as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Uniform Interstate Family Support Act (UIFSA). The ULC is also known as the National Conference of Commissioners on Uniform State Laws (NCCUSL).

The purpose of the uniform laws promulgated by the ULC is to provide clarity and consistency among state laws. Most aspects of family law are legislated at the state level, not the federal level. So the same issues may be addressed very differently in different states. When the ULC approves of an Act, the laws that comprise the Act must be ratified by the various state legislatures. As each state passes a set of uniform laws, there may be slight variation in each state’s adoption of the Act. But there is a high level of consistency, state by state, that could not be attained without the ULC’s Acts.

The Uniform Deployed Parent Custody and Visitation Act (UDPCVA) contains common-sense provisions to avoid penalizing a deployed parent while also giving proper regard for the rights of the non-deployed parent, in carrying out what is in the best interests of the child(ren) involved. The main provisions of the Act address the devising and implementation of a temporary co-parenting arrangement in light of a parent’s deployment, including how to address the deployed parent’s transition back home after the deployment ends.

The UDPCVA may or may not be ratified by all fifty states, as UIFSA was in a period of approximately two years after it was introduced. But we can anticipate adoption of the Act in many states in the coming months.

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Categories : Child Custody, General Family Law, Interstate issues

Four Primary Issues in Divorce

Posted by Gerald Williams

· January 24, 2013

· No Comments

While a divorce can be a challenging process, there are four primary issues in divorce that must be addressed . After the initial difficult decision of whether to pursue a dissolution action, many parties wonder where to begin in sorting through the many pieces of the marital relationship. One helpful place to start is to realize that there are two primary issues that apply to every divorce and two additional primary issues that apply when the divorcing couple has minor or dependent children:

Property Division

Almost every marital estate includes assets and debts. Both must be identified, disclosed, and divided equitably between the parties. Assets commonly include: the marital homestead, other real estate, stocks and bonds, retirement accounts, business interests, motor vehicles, and personal property (such as jewelry, electronics, home goods and furnishings, etc.). Debts commonly include: second mortgages, credit card balances, personal loans, lines of credit, student loans, and medical bills.

Whether a party intends to hire an attorney or proceed without one, it is helpful to write out the list of assets and debts with even a rough estimate of their values. Doing so allows the party and / or his or her attorney to conceptualize the marital estate and to begin to formulate potential options for a fair property settlement.

Spousal Maintenance

Spousal maintenance was formerly known as “alimony.” It is less commonly awarded now than it was in the past, but there are still plenty of situations in which spousal maintenance is appropriate. The two primary factors are the length of the marriage and the income disparity between the spouses.

If a party believes he or she may be entitled to spousal maintenance, it is helpful to begin by writing out a budget of his or her reasonable monthly living expenses. If the party is unable to meet his or her reasonable expenses, and the party’s spouse is able to contribute to them, then spousal maintenance may be appropriate.

If spousal maintenance is appropriate, it is also important to consider how long it should be paid from one spouse to the other. In a minority of cases, permanent or otherwise long-term spousal maintenance is necessary. In a majority of cases, parties agree or are ordered to exchange spousal maintenance for a limited amount of time. Sometimes the time frame includes a “step-down” approach whereby the amount of spousal maintenance decreases over time until it is no longer paid at all. It is also commonly tied to the spousal maintenance recipient’s ability to earn income, which may be expected to increase when enough time has passed for him or her to seek education or take other steps towards gainful employment.

One of the most important aspects of the spousal maintenance issue is whether the parties will agree to divest the Court of jurisdiction over the spousal maintenance issue after the divorce is final. If so, the parties’ agreement will include a Karon waiver, which prohibits the Court from modifying spousal maintenance in the future. If the parties have not agreed to a Karon waiver, then either party may petition the Court for a modification if the parties’ circumstances change.

Custody and Parenting Time

There are two types of custody: legal and physical. Legal custody relates to issues like religious upbringing, major medical decisions, and type of education. Parties often agree to share legal custody decisions and are awarded joint legal custody. In a minority of cases, sole legal custody for one parent is an appropriate resolution to this issue.

Physical custody relates to the day-to-day care of the child. Increasingly, the label of “joint physical custody” vs. “sole physical custody” has become far less meaningful than the parenting time schedule the parties are ordered to follow. Rather than focusing on the label of “joint” or “sole,” the better focus here is for a party to give serious thought to the co-parenting schedule that he or she believes is in the “best interests” of the child(ren).

Here are a few common schedules:

The parties follow a 5-2-2-5 schedule where one parent takes Mondays and Tuesdays, the other parent takes Wednesdays and Thursdays, and the parties alternate weekends (Friday through Sunday).

The parties follow a week-on / week-off schedule.
One parent provides the primary residence for the child(ren) who see the other parent every other weekend and one or two nights per week.
One parent provides the primary residence for the child(ren) who see the other parent on school breaks and for alternating holidays. This schedule is especially common when the parents do not reside in the same state.

Of course, where safety concerns or other serious issues are present, a shared custody arrangement like those described above may not be appropriate. In these cases, sole physical custody to one parent with limited visitation and / or supervised visitation by the other parent may be necessary.

Child Support

Child support is often relatively straightforward. It is based on the parties’ relative incomes and the agreed-upon or court-ordered parenting time schedule. The Minnesota Child Support Guidelines Calculator is an excellent tool for practitioners and curious parties alike: http://childsupportcalculator.dhs.state.mn.us/Calculator.aspx It provides the basis for the child support numbers the parties will work with as they attempt to resolve the various pieces of the divorce.

The three types of child support considered in any child support award are:

Basic support which is paid from one parent to the other for the day-to-day necessities of the minor child(ren)
Medical support which divides the costs of medical insurance premiums and other out-of-pocket medical costs as between the parties
Childcare support which divides the costs of childcare as between the parties

Parties may agree to deviate from the Minnesota Child Support Guidelines, but to do so they must first acknowledge the Guidelines and then assert that it is in the best interests of the children to deviate from them.

The foregoing outline is a very general and very basic representation of the potential issues parties will face as part of the dissolution process. These issues are often challenging and complex. Any party faced with a pending divorce is well-adivsed to hire an attorney to assist him or her with the process. Skillful representation is often key to insuring a fair and efficient resolution. Contact the attorneys at Williams Divorce & Family Law today to see if our firm would be a good fit for you.

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Categories : Alimony / Spousal Maintenance, Child Custody, Child Support, Divorce, General Family Law, Parenting Time

Joint Physical Custody – 5-2-2-5 Schedule

Posted by Gerald Williams

· October 24, 2012

· 30 Comments

When parents share child custody with a 50-50 schedule, it is common for the schedule to be week-on, week-off – i.e., one week with one parent, the next week with the other parent, and so on. But not likely if a child custody professional is involved. Many parents agree to share custody by alternating weeks. But custody experts tend to disfavor that schedule, particularly for young children, and particularly during the school year.

Custody experts typically favor a schedule known as “5-2-2-5”. One parent has Mondays and Tuesdays overnight. The other parent has Wednesdays and Thursdays overnight. The parents alternate the Friday-Saturday-Sunday overnights each week. The numbers add up to fourteen, because it constitutes a two-week (fourteen-day) rotation.

With the 5-2-2-5 if you are the Wednesday-Thursday parent, you have Wednesday-Thursday-Friday-Saturday-Sunday one week (that’s the first 5) and Wednesday-Thursday the other week (that’s the second 2). The other parent has Monday-Tuesday the first week (that’s the first 2) and Friday-Saturday-Sunday-Monday-Tuesday the second week (that’s the second 5).

Here is a visual:

Other posts and pages on our site that mention 5-2-2-5 schedules:

Four Primary Issues in Divorce

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Categories : Child Custody

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Minnesota divorce attorney, Gerald O. Williams, represents clients in divorce and family law primarily in the communities of Woodbury, St. Paul, Minneapolis, Eagan, Inver Grove Heights, Cottage Grove, Maplewood, Oakdale, Lake Elmo, and Stillwater, as well as the greater seven county metro area including Washington, Ramsey, Hennepin, Dakota, Anoka, Scott, and Carver.

Archive for Child Custody – Page 2

Property Division

Spousal Maintenance

Custody and Parenting Time

Child Support

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