December 10, 2009
By Jennifer Moore, Family Law Attorney
A Surprising New Ruling by IRS Regarding Child Support
Recently, the Seattle Times reported that the IRS determined that a single mother of two who worked as a hairdresser could not claim her children as dependents on her tax return, because she could not prove that she provided over 50% of their children’s support. This is a surprising result, since, in this case, it leads to the anomaly that no one can claim these children as dependents.
Tax Law, Child Custody, and Tax Planning
Although I am not a tax lawyer, as a family law attorney, I am often asked to help my clients allocate the dependency exemptions fairly. Parents are able to trade dependency exemptions back and forth quite liberally, regardless of who provides the most support, or who the children live with most of the time. The default is that the parent who has custody most of the time is entitled to the dependency exemption. However, tax planning often dictates that the other parent will get the most use of the dependency exemption. Often, families simply want to divide the tax benefit by alternating the dependency exemptions.
Apparently, however, if the hairdresser’s case is taken as new law, low-income tax payers will need to maintain records as to how much they’ve expended on support for their children. See the IRS Guidelines for more information.
October 30, 2009
By Jennifer Moore, Family Law Attorney
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.
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.
September 15, 2009
This week I was reading The Hennepin Lawyer, the magazine of the Minnesota Hennepin County Bar Association.
One article in particular caught my eye: Much ADAAA About Nothing: Recent Amendments to the Americans with Disabilities Act”.
The article was written by Michael Iwan and Chris Amundsen, two attorneys in Minnesota. It is aimed at attorneys, so for laymen such as myself, it can be difficult reading. So, I called upon one of my friends, Cynthia, from the Minnesota Association for Children’s Mental Health (MACMH).
An Advocate for Disabled Children comments on the amendments to Americans with Disabilities ACT (ADAAA)
Here is my slightly edited version of what Cynthia said about the Americans with Disabilities Act Amendment Act, based on the article.
It allows for protections even when the condition is in remission, improved by treatment, etc. so that a client would be protected during a future episode/crisis/etc.
It broadens and defines life activities which are impacted by a disability and which therefore fall under provisions of the Act.
It covers far many more people who can reveal possible problems without fear of reaction — I.E., if I have diabetes and ask my employer to let me take time off work to go to treatment if I have a low blood sugar attack, he can’t fire be because I have diabetes. And so on.
If you have other questions, contact ADA Minnesota.
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.
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.
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.
Moore Family Law, P.A.
August 16, 2009
When You Can’t Afford to Hire Attorneys
When You Can’t Afford to Hire Lawyers
Typically family attorneys do their fair share of pro bono work, as do lawyers in other areas of practice. However, from what we can see, some attorneys can only accept a very small number of pro bono legal cases, which meet their specific income and subject matter requirements. Chances are, you will have better luck going through one of the other pro bono services for your divorce, child custody case, or other family law matter.
Free Legal Advice from a Divorce Lawyer
Every family law litigant should have the right to compensated, competent legal representation in court, regardless of income. However, in these days of reduced court funding, this may not be an attainable goal. The Star Tribune in Minneapolis, Minnesota published an article this week on where to go if your circumstances require you to go into court without an attorney. Click Here for the link The article is not exclusively about family law but it does apply to someone seeking divorce attorneys or child custody lawyers as well as other areas of the law in Minnesota
Hire an Attorney for an Hour or Two
Even if you can’t afford an attorney to represent you in Court, get some legal advice to make sure you are on the right track, even if it means paying for an hour of an attorney’s time to look at your documents. We hope you find these links useful.
August 9, 2009
Child Custody, Divorce, and Mediation
First of all, my thanks to Carol Vander Kooi for the ideas in this blog.
The Right of First Refusal and the First Option to Care
I was in a mediation recently with a mediator, and we were discussing what is traditionally called (by us lawyers) the “right of first refusal”, that is commonly put into custody agreements to allow parents to be the primary daycare resource. She noted that the language we use for this parenting option does not support a stated goal that both parents be equally vested in the lives of their children. She suggested that we should call it the “First Option to Care”.
In Family Law, Mean What You Saw and Say What You Mean
I like this idea. I would recommend that when looking for a family law attorney for your divorce or child custody place, you find a lawyer who insists on plain speaking and who insists that you understand what’s going on with your case. It’s important that our language reflect our intentions.
Here’s a link to some useful information regarding mediation in Minnesota.
Topics covered include:
Mediation a cost-effective strategy in a divorce or child custody matter.
Mediation is less stressful for children in a divorce
Especially when compared to a court battle in the course of a divorce.
Mediation is confidential,
Unlike most family court matters.
What happens in a divorce or child custody mediation cannot be used in family court.
Mediation promotes communication during a family law matter.
Mediation focuses on the future to guide and inform your divorce action.
No matter what happens to the marriage, parents can still stay partners, in a new family arrangement, for the children.
Mediation is also available to resolve problems after the divorce is final.
Moore Family Law, P.A.