April 12, 2010
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.
March 8, 2010
By Jennifer Moore, Family Law Attorney
Parents do not always agree on the issue of child discipline. This is a major problem in custody cases.
Discipline May Affect a Child’s Preferences
Where one parent is permissive and the other parent is somewhat more strict, the permissive parent has an edge in a custody battle. Even though courts attempt to honor relationships with both parents, the more permissive parent will be favored by the children. This will be reflected in any custody evaluation, both in the children’s preferences, as well as in the evaluator’s observations regarding the children’s bond with each parent. As Arizona Judge Anne Kass states in her article, Divorce Pair Should Agree On Discipline, “the common way these quarrels over discipline methods will usually play out is that the children gravitate to the parent who is more lenient because children vote with their feet.”
Tools to Measure Discipline
It can be hard to win a custody battle if your argument is that the children need more discipline, even if it’s true. Psychologists have attempted to design tools, such as the “Discipline Index,” that measure the the level of discipline that each parent may use, without asking the child to take sides in the divorce. However, it is my experience that custody evaluators seldom use these tools.
Discipline May Lead to Allegations of Abuse
A greater problem is that conflicts over punishment styles can lead to allegations of abuse. I was chatting with a group of friends, ranging from age 25-50 the other day, and almost every one of them had stories of experiencing physical discipline as a child. Some of the stories would have raised significant issues in a custody dispute. Some may have given rise to a child protection investigation or criminal charge. In Minnesota, you can be charged with a crime if you engage in malicious punishment of a child. Minn. Stat. Sec. 609.377 provides that “A parent, legal guardian, or caretaker who, by an intentional act or a series of intentional acts with respect to a child, evidences unreasonable force or cruel discipline that is excessive under the circumstances is guilty of malicious punishment of a child.”
Malicious punishment is a subjective determination. For example, A few years ago, there was rigorous debate over the propriety of “hot-saucing”, where the parent puts hot sauce on a child’s tongue as discipline. The practice has led to day care sanctions and even criminal charges, and has been the subject of custody litigation.
Attitudes and Beliefs About Discipline Vary by Community and Era
Salon.com has published an article about bibilical chastisement that shows the divergent nature of societal attitudes about corporal punishment. It is an almost certainty that Minnesota Courts would not regard “biblical chastisement” as an appropriate method of discipline, and such discipline would severely hinder a custody case.
What Discipline Style is Right for You?
We recommend that parents attempt to agree on a parenting style, and apply it consistently throughout their children’s lives. When cases come to us with discipline conflicts, we advise that the more strict parent modify their parenting style towards lenience, without giving up important parent child boundaries or risking the safety of their children. We also advise parents to avoid physical discipline in all cases. Sometimes, physical contact is necessary to protect yourself or your child. However, such contact should be loving, and intended to protect with every effort made to avoid any harm.
Where the parenting styles have been different for a long period of time, we advise that families engage in therapy and education together so that parents can parent more effectively with fewer misunderstandings and no false allegations of child abuse. Classes are available through the University of Minnesota Extension Service, and The Storefront Group.
February 23, 2010
By Jennifer Moore, Family Law Attorney
The New York Times has published an interesting commentary about role reversals: whether current economic forces may lead to more stay at home fathers and whether societal norms support this. Personally, I’ve seen this in some of my most difficult cases, which tend to be role reversal cases.
Father as Primary Caregiver
Courts have sometimes had difficulty accepting the premise that the father has been the primary caregiver of the children. Where there is clear evidence that the father has been the primary caregiver, courts have been less accepting of the premise that it might be in the children’s best interest to continue primarily in the father’s care.
Husband in Need of Spousal Maintenance
Financially, courts have had even more difficulty with the premise that a man might meet the standards for an award of spousal maintenance, even where there is evidence that the husband has been unemployed for a long period of time and may not be capable of self-support without some retraining. Sometimes, the court will hang its decision against the non-working husband on the belief that he is voluntarily un- or under-employed. I have not always seen a clear emphasis placed on voluntary un- or under-employment in cases where the wife has chosen to remain unemployed for long periods of time.
If the purpose of spousal maintenance is to avoid any unfair economic consequence of divorce, I can only conclude that the Courts believe it is fair to hold both men and women to an outdated social contract.
January 12, 2010
By Jennifer Moore, Family Law Attorney
I’ve heard it said that we are so fascinated by celebrity stories because they serve as modern morality plays. According to Slate, Bristol Palin is seeking sole custody of her daughter, and Levi Johnston is fighting it. Minnesota (as opposed to Alaska) has a statutory presumption in favor of joint custody. However, the presumption seems to be applied inconsistently. In many cases, the presumption is ignored in favor of an analysis of work and school schedules. In others, the parties are discouraged from raising significant issues of neglect and chemical dependency, based upon the experts’ opinion that these issues would not overcome the statutory presumption in favor of joint custody.
No parent is perfect. I advise my clients to be careful to permit the other parent a certain freedom and autonomy to build their independent relationship with their children. That being said, I cannot advise my clients to ignore true dangers to the mental and physical wellbeing of their children.
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.
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 13, 2009
Stress, Strain, and Divorce
A Few Words from A Family Law Office Manager
We live in stressful times. Half the people I know are depressed, it seems, agitated or both! Stressed out.
I can identify with you. Take blogging. Blogging is good for the spirit, provides a basis for helping folks out and of course is a great way to let other folks know who you – and your organization — are. But what if you’ve spent all week doing data entry and balancing the books? Dull, dull, dull!
What if you, like me, are not really qualified to blog about the most interesting things in the office? Here I am, office manager in a family law / probate / trusts and estates law firm with one paralegal, several attorneys – and me. Everyone here is more qualified than I in the legal field. My expertise is in marketing and cash management and, well, managing the office.
Stress and Strain and the MTA (Marital Termination Agreement)
Recently a client came into the office to sign their MTA (Marital Termination Agreement – that’s legalese for divorce papers, at least here in Minnesota. He was upset, he did / didn’t want to sign them. We talked. I was glad for a chance for some human contact and he and I actually have a lot in common – we’ve both been through a divorce and we’re both emotional about it – and committed to making it happen so we can move on.
Speaking of emotions, have you noticed the number of people going off the deep end lately and launching on various violent and destructive sprees? It’s a lot, it seems to me anyway. I think everyone is suffering from stress. Divorce, like running or mountain climbing where you hit *the wall* and keep on going on raw will power – divorce, child custody, probate, estate planning – though divorce is the worst – all of these are emotional and often force you to go beyond what you think you can do and in fact sometimes do force you into situations where you really don’t know how to cope, or cope as well as you want.
Divorce and Self Help
Here’s my point. Divorce almost inevitably involves real estate, child care arrangements, financial planning, health issues, and mental health issues. Seek help. If you had a broken leg you’d see a doctor. If you have to sell the house, find a realtor and a mortgage banker. If you have a spirit at risk of being broken, or a life in danger of being damaged, seek out not only friends you can talk with; but a support group, individual therapy, group therapy. Many of us have been there. It’s worth it.
So, that’s it! Be your own best advocate for you and for your loved ones.
And the man who did / didn’t want to sign his divorce papers? He signed — *after* I promised that his attorney would talk with him next week about it before proceeding.
Thomas Moore, office manager
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.