Who Should Pay for the Lawyer in Family Law Child Protection Cases?
October 30, 2009
The Minnesota Supreme Court has agreed to hear a case that could have major implications for poor parents who are sued in child protection cases (See The Star Tribune). The question, interestingly enough, isn’t whether parents parents who can’t afford an attorney in a child protection case are entitled to representation. They are. Instead, the question is whether the Court has the authority to require a county to pay for a private attorney or whether representation must be by a public defender. Public defenders are paid for out of the judiciary budget. In the case to be decided by the state supreme court, a Rice County judge appointed a private attorney to represent the indigent parents in a child protection case, ordering the county to pay for it out of their budget.
Private Attorney v. Public Defender
I cannot say enough about the quality of public defenders we have here in Minnesota. However, it is likely that most people would choose a private attorney over a public defender. I did read an interesting article in The Concurring Opinion that theorized that the experience obtained by public defenders make them a better choice for most defendants than a private lawyer. Another problem is that the pay rate for private attorneys performing public defender services can be very low. In Wisconsin, for example, a private attorney who takes a public defender appointment will earn $40 an hour, when the average hourly pay for attorneys in Wisconsin is $188 an hour. (From All Business.) In fact, that $40 an hour is only $5 an hour higher than was paid for public defender appointments in 1978, when the public defender statute was passed.
Public Defender Overload
With the current economic situation, there is a serious problem with overload in the public defender’s office, especially in out-state Minnesota. (See The LaCrosse Tribune and The Star Tribune). Hiring private attorneys to help with the backlog in time-sensitive child protection cases must be a serious temptation to judges balancing their own overcrowded dockets against the welfare of abused and neglected children.
Of course, if the Courts expect private attorneys to accept appointments to represent indigent clients, there needs to be a mechanism to pay the attorney for their time. The attorney who was appointed in the Rice County case has not yet been paid.
What Your Attorney Does for You: A Minnesota Judge’s View
October 5, 2009
By Thomas Moore, Office Manager
Minnesota Judge Jay Quam speaks frankly, and to those of us who are not attorneys in the article: Judging Without Lawyers: Not Knowing Makes for Nightmares. I recommend you read Judge Quam’s article in full, but I’ve included excerpts below.
Judge Quam: “Judges want more than anything to make the right decision in the case before them but can’t be comfortable with their decision unless they can be confident they have all relevant information. Here’s where lawyers’ contribution to justice proves invaluable…
“Every judge want to do the right thing… the law is permissive enough for the judge to rule for either party depending on what the facts are. So, in the very large majority of cases, the facts are what the judge needs to guide him or her to the right decision.”
What Attorneys Do For You
Judge Quam points out that your lawyer provides him, the judge, with two essential functions. Attorneys are “professional story gatherers, and professional story tellers.” The judge is more comfortable knowing the underlying facts have been fully developed by trained professionals. This is the story gathering function. He continues:
“The story-telling part is equally valuable. For starters, the lawyers know the important courtroom rules that the clients don’t know, but which are critical to the judge’s decision. The lawyers’ knowledge of the rules of the courtroom keeps the proceeding from becoming akin to an episode of ‘“Jerry Springer.’ The list of critical things that lawyers know, but others don’t, is a really long list…” It includes:
- The law;
- The rules of evidence;
- The protocol for presenting evidence;
- When to speak;
- When not to speak;
- What is relevant, and what is not; and
- What is persuasive, and what is not.
“…With lawyers involved, the judge knows that trained professionals have sifted through the evidence and presented the judge only that evidence which is truly relevant to the dispute.”
What Happens without an Attorney?
You may decide to represent yourself in court. Here’s what the Judge has to say. “With all that lawyers do, you may, very appropriately, ask: How in the world does our adversary system function when there are not trained advocates in it?
“The answer, I have found, is ‘not very well.’ Given the complexities of our court processes, as well as the difficult skill of advocating effectively for anything that matters, it is not hard to understand why…”
What happens is that, without an attorney to represent you, the judge often sees a number of things that are needed to be done but that he or she, whether constrained by time or by ethics, cannot do. The judge cannot:
- Educate you about the law
- Educate you about procedures
- Teach you how to present yourself properly in court
- Investigate the case
All these functions, however, are precisely what you hire an attorney or lawyer to do.
Child Custody: Japan v. Minnesota
September 29, 2009
CNN recently published Japan Father Abduction, the story of a father from Tennessee who, despite having joint legal custody of his children, was arrested when he sought to recover his children from Japan, where their mother, and the man’s ex-wife, had taken them.
In Japan, custody is given to only one parent in a divorce. This is the opposite of our own country and Minnesota’s legal tradition and precedent that assumes joint legal custody is in the best interest of a child.
Legal Child Custody in Minnesota
The definition of legal custody is set forth in Minn. Stat. § 518.003, subd. 3(a): “the right to determine the child’s upbringing, including education, health care, and religious training.” Compared to physical custody, which is the right to make day to day routine decisions about the child’s welfare, legal custody is about the “big picture” decisions that affect the way the child will learn about and be raised in the world. See Basics on Child Custody and Parenting Time at the Minnesota Courts Self Help Center.
Joint Legal Child Custody
Most of the clients that come into my office seek joint legal custody. Both parents want to continue to have an influence in the major decisions of their child’s life, and most of the time, it is in the child’s best interest to continue to have both parents as actively involved as possible.
The case of the father being arrested in Japan for trying to exert his right of legal custody should be a reminder to us not to take our legal custody rights to be involved in our children’s lives for granted.
Financial Crisis, Divorce, and Your Lawyer
September 7, 2009
By Thomas Moore, Office Manager
First of all, my thanks to attorney Steven H Silton, whose article, Counseling Clients in Financial Distress, in the August 2009 issue of Bench & Bar of Minnesota is the inspiration for this blog. Bench & Bar of Minnesota is published by the Minnesota State Bar Association.
Here’s my personal reaction to what Mr. Silton says in his article.
The financial crisis, and your personal crisis, is really about what you can do.
The global financial crisis is real and can be a rude awakening to someone who does not pay attention to the economy, or who does and who has, until now, enjoyed prosperity. In fact, today’s circumstances can be particularly hard on you if you’re used to hard work, success, and success based upon your hard work. Sometimes it seems that what you’ve done has been for naught. But, understanding your limits, rethinking your life, and taking a holistic approach to life and work, can help — though nothing can guarantee that your investments, or your marriage, or your social position, or anything else for that matter, will keep on an upward curve. We are all subject to market forces, nature, and social forces beyond our control. We have to learn how to learn from failure; and we must learn how to best deal with the psychological and personal aspects of the situation we are in.
You need experts, carefully selected, to work your way through this.
You should work with professionals, experts, to deal with what you cannot handle on your own. There is no shame in this. This could involve an attorney, a financial advisor, a life coach, a realtor, or a therapist. You have to do your life work and engage others in this work as appropriate. Getting depressed can be part of this but we have to learn to work through all the aspects of our situation. To quote Mr. Silton, “Accepting responsibility is one thing, but there is no room for despair in a sinking ship…” We must focus on how to get through the present crisis and how to build a better future. Victories in these necessary struggles, instead of avoiding the struggle, are what build confidence and reduce anxiety.
Stress and strain require you to be careful, ethical, and honorable.
If you are stressed, if those with whom you deal are stressed, you and they are inevitably being pushed in the direction of making distressed, even desperate, decisions. Someone sinking into apparently hopeless debt and bankruptcy will not always make rational decisions about their finances or about anything else, for that matter. Many examples could be cited of a party in a divorce who spends what he does not have on his bar tab, his ‘toys,’ and in other ways to avoid thinking about and dealing with what is inevitable. Be careful in your dealings, guard yourself from those who are not and work at living your life as ethically and as honorably as you can.
Some Things Never Change in Family Law!
September 7, 2009
Some things never change in family law – including the costs of divorce!
Divorce, alimony, child support, child custody have always been a strain – even for some who really are well off. Read the “Special to The New York Times” for Sunday, August 9, 1903, regarding the unfortunate Mr. Frederick L. Champlin, “the once wealthy clubman” of Chicago, Illinois.
Even a Family Lawyer Needs a Break!
September 5, 2009
Even a Family Attorney Needs a Break!
Take the Kids Camping!
This is the last unofficial weekend of summer, and the last chance to take a long weekend camping at any of the many Minnesota State Parks . I recommend going to some of the ones further outside the Twin Cities than usual. I spent a long weekend at the beginning of August at Bear Head Lake State Park outside Ely, MN, the wanna-be-hosts of the 2016 Olympics .)
This weekend I’m venturing to
Upper Sioux Agency State Park, where I plan to hike some trails and kayak some waters. Favorites in the past have included Gooseberry Falls State Park outside of Duluth, and Sibley State Park, outside Wilmar.
State Parks are a great destination for families, small and large. At Bear Head, our neighbors included a large family reunion with people from all over the five state area. I enjoyed watching uncles teach nieces to fish, and grandpa argue with son over who snored louder. State Parks have nice sized campsites, some with electricity for RVs, shower facilities, and well-informed staff that can help you make the most of your time out in the wild.
Your Divorce and your Special Needs Child
August 25, 2009
Your Divorce and Your Handicapped Child
When a child or adolescent needs special help managing behavior and / or coping with the symptoms of mental health disorders, families usually have to maneuver painstakingly through a maze of county, state, and federal regulations, agencies, and the individuals who represent them; in order to learn how to best advocate for their handicapped or special needs child. Combine these with a divorce, child custody battle; or with a death in the family and a probate court case; and the difficulty of everything, especially for your child, is multiplied.
Divorce Law and Disability Law
If you are the parent of a handicapped child and are undergoing divorce you will have to learn about not only family law but also the fundamental principles and procedures involved in disability law, special education, civil rights legislation including human rights legislation, IDEA legislation, The Minnesota Children’s Mental Health Act, county services, and quite possibly juvenile justice proceedings and other laws.
You will need to understand the structure of the courts and the various bodies involved in your child’s well being. You’ll need to decide the best way to proceed when you and / or your child are called before an administrator, when you have to fill out what can seem an endless sea of paper forms, and you’ll need to decide what to do when you must appear in court. The more the courts are involved, the more likely it is you will need to retain a family law attorney or a disability lawyer.
You will have to understand the differences between these laws and be able to decide what is most appropriate to used for meeting your child’s needs.
Appeals Court and Administrative Appeals
You may not get what you need for your child at the outset. You may need to learn the procedures and forms and contacts needed to file an appeal or a complaint regarding an administrative decision or court ruling. While in many cases, especially regarding your disagreement with a rule or an administrative decision, you may not need an attorney; you may be served best by at least hiring a knowledgeable lawyer to review the paperwork involved in caring for your child. This costs less than retaining a lawyer to become your advocate, and if possible it will provide you some basic legal advice.
You Will Learn to be Your Child’s Most Powerful Advocate
Finally, you will have to become expert in advocating for your special needs child; and learn also how to avoid and resolve disputes regarding your children.
It sounds like a lot and it is. We don’t know of any attorney or advocate who can do all this for you, even when you can afford to hire such an expert. Unfortunately, in extreme cases you may need to retain one attorney for your divorce, and another for your handicapped child.
Advocating for your child in Minnesota
There are several organizations that can help.
The Minnesota Association for Children’s Mental Health is a statewide education and advocacy organization and a primary resource for children’s mental health. MACMH produces more than nine children’s mental health publications and organizes the annual Child and Adolescent Mental Health Conference in Duluth, MN.
MACMH can be reached at The Minnesota Association for Children’s Mental Health
Another resource for parents of handicapped or special needs children is The Arc of Minnesota. The Arc of Minnesota is a private, non-profit, statewide voluntary organization. The mission of The Arc of Minnesota is to support and advocate for people with intellectual and other developmental disabilities and their families as they choose how they live, learn, work and play. The Arc of Minnesota fight for persons with developmental disabilities so they can reach for a brighter, more inclusive future.
The ARC of Minnesota can be reached at The ARC of Minnesota
Thanks to the Minnesota Association of Children’s Mental Health for supplying the information used in this blog.
Thomas Moore
Office Manager
Moore Family Law, P.A.
Plymouth, MN
Divorce and MySpace and FaceBook and…
August 25, 2009
Social Networking During Divorce
Divorce and Communication
When parents divorce, they often have to find new ways to communicate with each other about their children. Sometimes it’s a good idea to pass a notebook along with the children when they go for parenting time. Sometimes it’s a good idea to set up an account at Our Family Wizard to to keep track of important dates on a shared schedule.
Divorce, Child Custody, Alimony, Child Support and Social Networking
One thing that is NOT a good idea, however, is to use online social networking services, such as Facebook or MySpace as a soap box to talk about your former spouse in a negative way.
Social networking sites allow you to share content with family, friends, colleagues, strangers, anyone with access to the internet. There is great potential to help you keep in touch with people, but it also has great potential to help you alienate people and look like the worst possible parent.
From Where I stand as a Family Lawyer
I urge you to resist the temptation to find out where your former spouse is posting online, and even more, I urge you to resist the temptation to respond to anything he or she posts. Do not start a passive aggressive flamewar by posting on YOUR site in reaction to something posted on his or her site.
There is no good that can come of this. If you need to vent, do so over the telephone or a cup of coffee to a friend or trusted family member. Do not post it publicly and permanently on a website where people will see and judge you for it. People do not know your whole history, and posting a one-word essay on the unfitness of your former spouse is not likely to make anyone agree with you – they are more likely to turn against you.
Take the High Road
Social networking gives you the opportunity to practice taking the high road, and to make choices that are concerned with the best interest of your children. That includes refraining from fighting or vilifying the other parent in a way that will only vilify yourself.
Emily Matson
New Court Filing Fees in MN
August 17, 2009
New Court Filing Fees in Minnesota
As of July 1, 2009, new filing fees have gone into effect. While I knew “they” (The courts in Minnesota) were talking about raising rates, I had no idea by how much. Wow.
Court Filing Fees in Hennepin County, MN
Filing for dissolution (divorce) in Hennepin County has gone from $332 to $402. Filing a motion of any kind such as for child custody or in regard to a trust or estate planning legal matter has gone from $55 to $100. A complete list of Hennepin County filing fees is available online at the Hennepin County website
Court Fees in All Minnesota Counties
Filing fees vary by county and by type of matter (Family law, divorce, trust and estate, etc). Check the State of Minnesota website for the fee for your particular county and matter.
Emily M. Matson, Esq.
emily.matson@moorefamilylawMN.com
Plymouth, MN
