Each Thursday, the Minnesota Appellate Courts and the Minnesota Supreme Court publish their most recent opinions. Below are the newest ones for this week.

Minnesota Court of Appeals decisions

Minnesota Supreme Court decisions

My first marriage ended in divorce soon after we adopted our second special needs child — our son, whom we love as much as our daughter, also handicapped.

When you or a member of your family are handicapped everything gets harder and, to coin a phrase, “the harder it is for ‘normal’ people, the hard harder hardest it is for you.” You have to be you and your children’s best advocate no matter what the legal situation you and your lawyer are working on.

I am an office manager at a law firm, not an attorney, so I can’t deal in depth with the legal issues. I can say, however, that you can expect to be required to work with a legally appointed guardian for the child, that your child’s welfare — as well as your own — will be and should be of special interest to you, your lawyer, and the court; by the very cause and nature of special needs.

In my case, my soon to be ex spouse agreed that no matter what happened we would be partners for our children’s welfare. It was still emotionally draining. The divorce hit the children especially hard and for at least five years my son asked me, at every meeting, when his mom and I would get married again. My daughter was so hurt and angry she changed her family name back to her birth mother’s.

A few simple thoughts my Ex and I have discovered and worked on:

1. You CANNOT use the children as weapons against your former spouse or as trash cans in which to dump all of the bad news about your ex. It will ruin them. Be honest, yes, but remember their natural and healthy inclination is to continue to love both you and your ex. Don’t spoil this special love and understanding.

2. You MUST keep or establish trust between the adults in this situation and not seek emotional revenge or any kind of revenge or retribution. You are still a family and your kids need a sane and reasonably happy father and mother.

3. You HAVE to be flexible (trust –but verify — is the basis for this) in alimony, child visitation, and child support. Special needs people are in my experience, more emotionally and physically changeable than us ‘normal people’ and you have to adapt to and anticipate what comes next — new meds, new doctors, new social services etc. — and new providers and side effects to deal with. Then there’s the reality of layoffs, shorter hourse, the house that won’t sell, the job offer 1500 miles away… And,of course, the possibility of a new partner entering your life.

4. USE the situation for some soul searching for yourself and to work out a life plan for your children.

5. EXPECT that your spouse and their attorney will probably have significant differences about parenting, special needs — including denying that they exist, and about the treatment for same – or the denial of it. I’m not a pollyanna but it is possible to take responsibility for what is yours, work things out, or at least minimize the damage.

6. YOU SHOULD KNOW that life, and divorce, and the hurt and harm the hadicapped are all subject to — know that all this is unfair. Learn how to deal with it.

7. You MUST take some unselfish amount of time off just for yourself. You deserve it.

8. BE HONEST with the children about the situation. None of this “daddy is sleeping on the couch because his back hurts,” or “Mommy cries all the time because she has a headache,” or “Your father is on a trip.” No. Tell the truth but don’t overdo it– as, for instance, you would do when a young child asks where babies come from.

9. BE STRONG. This means knowing when to tough it out and when and where to scream and cry.

10. And, oh yeah, KEEP A SENSE OF HUMOR. That’s an order! There’s always somebody worse off than yourself who is working through this and who is learning how to. Learn how to.

11. Finally BUILD A NETWORK of friends, providers, teachers, and family to help you through this. It helps if they can accept not only the scream and cry part but also your joy at the advances you will see and find in your special needs loved ones.

I hope this helps.

Tom Moore
Office Manager
Moore Family Law

MY DIVORCE

I was divorced a while back and now I’m the office manager of a family law firm that deals mostly with divorce, custody; etc. Interesting!

So when my wife Jennifer mentioned The Huffington Post blog today, she piqued my curiosity and some memories of my own divorce.

The Huffington Post has a divorce section: www.huffingtonpost.com/divorce No matter what you may think of Ms. Huffington’s politics, you may find her blog interesting if you’re in / thinking of / recently out of a divorce.

I can understand why people get so emotional about these things. One of the worst days in my life was when my soon- to- be Ex took the children off to Minnesota (as we had planned) and I was left alone in Texas. When we said goodbye, I stood in the now empty echoing and no-longer-ours house and implored them, “Please don’t go!” I cried. They went.

My Ex and I had just grown apart. The stress of her needing a heart transplant and of having two handicapped children was tremendous and I in particular had a hard time dealing with it. Furthermore I had just started on a new career (professor of history) and was in grad school doing great – and it took a lot of my attention and time leaving less than my children needed.

Then with a lot of misery on my part–and with a sudden jolt — I realized that I could choose either my children or my career. I chose the children and gave up my new career with a forthright letter to my favorite history prof.

I’ve always been a private person in my way, in many aspects that really matter to me. I had not really discussed the emotional impact of all this – career, children, political differences — with my wife – therapists, yes but at first that didn’t work either. This was a really hard decision and I could have used my wife’s help more than I could ask for. I knew the history work I was doing would be a boon to mankind but it had to go. I dropped my history writing project but not before writing out my conclusions and sending them where I thought they should go. This small part I am proud of.

I finally found a suitable therapist in Texas: “Mr. Bill.” I let myself enjoy life a but more — well maybe more than a bit – and came to understand more the arc of my life from southern white boy (born in Connecticut!) to labor organizer to family man and computer consultant and historian to divorce and fatherhood. I could not let my children go. When my job in Houston finished, as I knew it would, I had an epiphany: “If I’m doing the right thing staying in Texas, why do I feel so miserable?” Every day I cried and screamed and bemoaned my fate. These outpourings of emotions would not do – though for a while I had to do them. I did learn to “deal with” in other ways – therapy, taking more responsibility for the kids, meditation.

So I had my epiphanies. I packed up a rental truck in the warm rainy and green Houston spring (it was 70 degrees and January) and drove to Minnesota to be near my kids (it was so cold the diesel fuel froze in the tank). I got there just before my Ex’s heart transplant, which was a great success.

Don’t get me wrong. Things were still rough, especially on the children, and it took me years to figure out and get a grip on my anger and my hostility, but I finally did and I finally accepted that I had made the right, the necessary, choice.

So, if you’re going through something similar, know you are not alone. A divorce even when it is for the best is usually a great loss of pride, family, familiarity. Some may breeze through a divorce but I didn’t. You probably would not either. It took years to get back close again to my children – after an estrangement totally my own fault. I grew up in the process – finally reaching adulthood as a fifty-something male.

Which brings us back to http://www.huffingtonpost.com/divorce Try an article or two. Makes ya think. Especially the part about building and using a network of friends and professionals (investment advisors, therapists, mentors, fellow workers,) according to your needs.

And, don’t forget to cultivate, smell, and pick the roses along the way.

Tom Moore
Moore Family Law

Parental Alienation Syndrome refers to a disorder in which a child, on an ongoing basis, belittles and insults one parent without justification, due to a combination of factors, including indoctrination by the other parent (almost exclusively as part of a child custody dispute) and the child’s own attempts to denigrate the target parent. There is no doubt that this disorder exists both in my caseload and in my personal experience.

However, the extent to which the disorder exists is highly disputed. Often, the disorder is blamed for a broken parental relationship, when the real blame is abuse or neglect. So much so that Courts presume that a claim of Parental Alienation Syndrome is synonymous with a lack of personal insight. Moreover, the Courts often see cases in which a misguided claim of Parental Alienation Syndrome goes hand in hand with a lack of amenability towards therapeutic treatment.

The controversy surrounding Parental Alienation Syndrome is not exclusive to the legal system. Psychological experts also dispute the validity of P.A.S. as a diagnosis. And if there is a legitimate diagnosis of P.A.S., what can be done with that diagnosis, if the favored parent and the child are unwilling to participate in meaningful family therapy?

The truth is that it is likely that raising the possibility of Parental Alienation Syndrome will sabotage a custody case. That does not mean that the alienated parent needs to give up all hopes of repairing the parent/child relationship. The trick is to litigate the case without placing a label or a diagnosis on it. It is important to identify the problems associated with the custodial arrangement without diagnosing the problem and developing a focused proposal to repair the relationship with the child that does not blame the child or the other parent.

When I litigate these cases I focus on establishing the parenting problem through concrete proof. I ask my clients to maintain calendars. I ask them to document their efforts to obtain information about their child’s life. I ask them to keep the discussions with the other parent on topic and civil. If they are refused parenting time outright, I ask them to document the refusal. If the children are simply not present, I ask them to obtain proof that they were in the neighborhood (to counter a common argument that the alienated parent did not show up for parenting time). Phone records can be used to demonstrate efforts to call.

Over time, with enough court intervention, high quality, concrete proof can make a huge difference. In Minnesota, for example, one of the basis for obtaining a change in custody is that the other parent has engaged in a pattern of conduct that denies the alienated parent from exercising custodial rights. In my experience, this has never happened overnight. And, if the situation is truly one of Parental Alienation Syndrome, it could be argued that it would not be in the child’s best interest to change custody unless the change were graduated and supported by appropriate therapy.

Courts do not usually change custody without first attempting a number of other “fixes.” The Court will first attempt to clarify a visitation order to ensure that it is clear enough to enforce. Often, where there appears to be a problem with the child’s willingness to attend parenting time, the Court will order some individual or family therapy. If the problem persists, the Court may step up the therapeutic intervention to include both parents.

Thus, my usual focus when I see a viable claim of Parental Alienation Syndrome is to obtain the Court’s assistance to clarify the existing parenting schedule and obtain appropriate therapeutic intervention. I will also sometimes ask for the appointment of a guardian ad litem, who is an individual appointed by the court to represent the child’s best interests. I do not use the phrase Parental Alienation Syndrome.

Marriage Rescue

April 29, 2010

I have a colleague who approaches his family law practice like a ministry. He ensures that his clients’ spiritual needs are being cared for as well as their legal needs. I usually refer spiritual matters to my clients’ respective churches, but that doesn’t mean I don’t inquire into the need for a divorce. Sometimes, people come to see me when they wonder what the grass is like on the other side. Sometimes, they wonder if they are going to be shocked with divorce papers. In those cases, my job is to provide a little legal information and a referral to a marriage therapist, if it seems like a good idea. I wonder if maybe sometimes we could avoid the whole drama by living in the moment a little more. This article in Slate.com suggests that we should maybe spend a little more time in our marriage, rather than with our therapist.

I get this question a lot. The answer is that you cannot move your child to another state without obtaining a Court’s permission if there is a custody order in place. Court permission is obtained by making a motion to the Court and convincing the Court that a move is in the best interests of the child. Even if you and the other parent agree to a move, you should still get a Court order.

If you and the other parent don’t agree, you can expect the process to take some time. Sometimes, the Court will want to order a custody and parenting evaluation from Court Services or a private provider. And, the other party is entitled to an evidentiary hearing to contest the findings of the findings of the evaluation.

This process may seem quite involved. However, in hotly contested custody matters, it is the Court’s obligation to ensure that your children are being served well by your decision to move.

If you do take your child out of state, you may be subject to some fairly significant criminal charges. For an example how these issues play out in a real life case, read this article from today’s Star Tribune.

Is Divorce Contagious?

April 9, 2010

It’s an interesting question. Certainly, when I talk to potential clients, one theme of our discussion is often the others in the family’s social network that are going through or have been through divorce. You might be interested to read this article from www.slate.com discusing social contagion studies. Apparently, there is a study that will be released soon that addresses the question whether divorce is contagious within social networks.

Be Kind to Your Lawyer

April 5, 2010

April 13, 2010 is National Be Kind to Lawyers Day! Click here to find out how to participate and for some cool facts about lawyers.

Reform and its Opposite

April 2, 2010

Nancy Ver Steegh (William Mitchell) has posted “Family Court Reform and ADR: Shifting Values and Expectations Transform the Divorce Process” (Family Law Quarterly, Vol. 42, No. 3) on SSRN. Here is the abstract:

During the last fifty years, the process of divorce has undergone a remarkable transformation. This article examines the sweeping breadth of the change and the underlying societal forces behind it. As the family court landscape has changed, a ripple effect has occurred necessitating reconsideration of the roles that lawyers and judges play in the divorce process. Although lack of judicial resources has fueled some of the change, deep funding cuts foreshadow a less positive transformation, one potentially resulting in a two-tiered system of justice for families.

I am somewhat concerned that Van Steergh is correct. As courts require litigants to pay increasing amounts for guardians ad litem, court mediation and settlement services, and remove the availability of publicly subsidized custody evaluations, I am required to inform my clients with lower incomes that they may not be able to fight for the best interests of their children or for a fair and equitable disposition of the marital estate. This often leads them to wonder what value I provide to them. Although the courts have made it much easier for these litigants to represent themselves in family court, having witnessed a great number of such contested pro se cases, I question the value such a process provides to a family undergoing a difficult separation.

Often, the hearings look a lot like an episode of Judge Judy, except that the judges are better behaved. Trials are streamlined into an hour of two of storytelling-style testimony, and often, the judges do not have basic pieces of evidence needed to make a decision. It is slightly better for the judge if one party has an attorney who is able to present appropriate information. However, there is no doubt that the interests of at least part of that family are not being addressed during one of these summary trials.

A family law attorney’s primary role in the divorce process is to represent the interests of our clients. I do not believe that any family is well served by a system where money buys the amount of justice received.

There is a certain nostalgia sometimes in browsing You Tube. This morning’s choice seemed appropriate to post here: My Dad Lives in a Downtown Hotel , an ABC After School Special. I hope you find it as funny as I do.