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.

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June 2, 2009

Home for the Holidays?

 Holidays and Children and Divorce

As a parents facing divorce, the biggest question you will face is determining custody and parenting time for your children.  This includes not only the day to day scheduling issues, but also the important days of the year that involve the holidays. 

Holidays must be addressed by every parenting schedule.  It is a question that must be addressed by every family; however, the answer to that question depends on your particular family.  

What a parenting time plan MUST include is a schedule that address where the children will be on the major holidays and vacations during the year.  This includes New Years Eve and Day, Spring Break, Easter, Memorial Day, 4th of July, Labor Day, Thanksgiving, Christmas Eve, Christmas Day, Hanukah, and other that may be important to your religion and culture.  

Vacations and Children and Divorce

Additionally, parents may wish to reserve a one-week or two-week period during which they can take a vacation with the children.  Usually this is reserved to spring break, winter break, and summer break time periods so that the children’s school is uninterrupted. 

 Details and Children and Divorce

What I typically see in a parenting plan holiday schedule is that the parents alternate years – in even years, mom has the children for Christmas Eve, and dad has them for Christmas Day; in odd years, they switch.  It is also important to consider which holidays matter most to you.  Is it ok for your children to be with your spouse for Thanksgiving, Easter, and Christmas Day all in the same year?  If not, then you should look at the alternating schedule to make sure it reflects what you want to have happen. 

 Finally, make sure that your schedule specifies whether it covers the Holiday day, or Holiday weekend, and what time periods that covers.  Sometimes Thanksgiving is just one day, sometimes it’s a 4-day weekend.  Sometimes Christmas Eve ends at 10 PM; sometimes “Christmas Day” starts at 10 AM the next day.  It is important to discuss these potential solutions with your spouse at the time you draft your parenting time plan.  It is not safe to assume that you and your spouse will work on the same time frame once things are in place!

 Emily M. Matson, Esq.

www.moorefamilylawMN.com

Plymouth, MN 55447

Phone:  763-951-7330

emily.matson@moorefamilylawmn.com

MN Family Law Attorney Discusses Alimony

Is $53,000 Per Week Too Much Alimony?

The wife of United Technologies Chairman George David is claiming that she requires an award of temporary maintenance (alimony) to cover her basic weekly expenses of $53,000.  http://www.nypost.com/seven/12192008/news/nationalnews/really_high_maintenance_144934.htm  That is $2,756,000 per year.   It’s hard to put your head around that kind of money, especially if you are the one being asked to pay alimony. 

 

In fact, in Minnesota maintenance (commonly referred to as alimony) is awarded based on a number of factors, including the standard of living during marriage.   In order to decide whether to award maintenance and the amount of an award of maintenance, both husband and wife will submit proof of their income and a proposed monthly budget.   The Court then balances the needs of the spouse seeking maintenance against the ability of the other spouse to pay.   

 

How About Zero Dollars per Week Alimony?

Not all cases warrant an award of maintenance. Sometimes, the marriage is not sufficiently long such that the spouse seeking maintenance has become accustomed to a higher standard of living or has lost opportunities to be self-supporting.  Sometimes, the needs of the spouse seeking maintenance are not sufficient to justify an award of maintenance.  And sometimes, there is no ability to pay.

 

Maintenance is a highly contentious issue.  In cases where maintenance is an issue, there is a much higher probability of going to trial and having a judge decide the case.  Unless a monthly budget is accompanied by solid supporting evidence, such as receipts, cancelled checks or other documentary evidence, it is likely that a Judge will red-line the budget, substituting his or her own judgment for the parties’.  $53,000 per week is likely to sound too high, even if it is consistent with the standard of living during the marriage.  

 

Similarly, if the Court must examine income information, the Court is likely to base its judgment on historical information, even though today’s economic reality might indicate that historical data is overly inflated. 

 

Your Attorney’s Job in a Divorce / Maintenance Case

The attorney’s job in a maintenance case is to give the Court less reason to disagree with your judgment about your needs and resources.  

 

 

Jennifer Moore

jennifer.moore@moorefamilylawMN.com

Moore Family Law, P.A.

www.moorefamilylawMN.com

3350 Annapolis Lane North, Suite C
Plymouth, MN 55447
(763) 951-7330

MN Family Attorneys On Child Custody

 

Child Custody and the People You Will Meet

When you are facing a tough custody battle, either as part of a divorce or not, there are many professionals who may be assigned, appointed, or hired to help you and the other parent figure out what is in the best interest for your children.  The following is a brief overview of some of the professionals who may be involved.  Every case is distinct, and there are many factors that go into whether a particular professional may or even can be involved in your case. 

 

Guardian ad Litem

If the court is concerned about the children based on some allegations of abuse or some other serious factor, it may order a Guardian ad Litem be appointed.  A Guardian ad Litem is someone who works for the county government and is trained to interview, observe, communicate, and make recommendations about the best interest of the children in a case.  They are the ones who speak for the children, and have a lot of influence in how the case will be viewed by the court. 

 

Custody Evaluator

There are many professionals that may be hired as a custody evaluator to help the parties and the court determine the best custody arrangement for the children.  These are often private practice attorneys or psychologists with an expertise in this field.  However, Hennepin County Family Court offers an Early Neutral Evaluation program that is a free service ordered early on in a case to help the parties attempt to work out their differences in a setting similar to a full evaluation.  If parties do not come to an agreement at the end of this process, however, the next step may be to hire a private Custody Evaluator. 

 

Parenting Time Expeditor

The court may order a parenting time expeditor be appointed to help the parties with their parenting time plan or unforeseen circumstances not addressed by earlier agreement.  An expeditor is empowered by the court to make decisions on behalf of the court.  The cost of the expeditor is paid for by the parties. 

 

Parenting Time Consultant

The parties themselves outside of the court may make an agreement to hire a parenting time consultant (although this agreement can be memorialized in a settlement agreement put on the record with the court).  A consultant does not have the legal authority of an expeditor, but is generally given more free rein to deal with the broader scope of situations that may arise in parenting and custody disputes.

 

Emily M. Matson, Esq.

Moore Family Law, P.A.

www.moorefamilylawMN.com

3350 Annapolis Lane North, Suite C

Plymouth

Phone:  763-951-7330

emily.matson@moorefamilylawmn.com

The Annual Family Law Institute in Minnesota

Every year at the end of March, the Minnesota State Bar Association’s Family Law Section (  http://www.mnbar.org/sections/family-law/  ) puts on the conference of the year for family law attorney:  The Annual Family Law Institute.  As we’re getting ready to attend this year’s conference, I am reminded of the excellent opening day speaker from the 2008 conference:  Constance R. Ahrons, Ph.D. ( http://constanceahrons.com/ ), whose topic “Listening to Children About Divorce” confirmed what many of us in family law have been trying to explain to our clients – children are affected by how you and your spouse relate to each other and your children.

 

Family and Children after Divorce

Included in her talk was an overview of her article, “Family Ties after Divorce:  Long-Term Implications for Children,”  Family Process ( http://familyprocess.org/ ), Vol. 46, No. 1, 2007.  Dr. Ahrons’ analysis of the long-term affects of divorce on the well-being of children offers a lesson for all parents now starting the divorce process:

 

“No single factor contributed more to children’s self-reports of well-being after divorce than the continuing relationship between their parents.  Children whose parents were cooperated reported better relationships with their parents, grandparents, stepparents, and siblings.  Most of all, the children said that they wanted to have relationships with both parents.  What the children wanted was not for their parents to be friends as much as they wanted them to be cordial and not badmouth each other.”

 

Id., pp. 58-59.

 

If you are able to maintain a cooperative relationship with your spouse, even if you don’t ever like each other again, your children will have better lives for it. 

 

Plan Now for Happier Milestones

When clients first come into the office and sit down and tell a story of heart ache and sadness and regret, and worse, I try to get them to think about the future, about when the divorce is done and it’s time to have a new start on life.  I ask them to think about their children – when they graduate high school, or college, or get married, picture being at their wedding and getting along with your former spouse for the sake of your child.  If you alienate your children and put them in the middle during the divorce, and subject them to the fighting that is going on between the two of you, then both parents might not be invited to those events.  If you want to make sure your children are going to have happy milestones that include you, make sure you have a relationship that means it can include your former spouse as well.

 

I’m Emily M. Matson:

Emily.matson@moorefamilylawMN.com

 

I’m family law and trusts and estates attorney at Moore Family Law: www.moorefamilylawMN.com

3350 Annapolis Lane North, Suite C

Plymouth, MN  55447

763-951-7330

VISITATION AND PARENTING TIME 


Today we no longer call a father’s time with his children “visitation”.  We call it “parenting time”. 

 

A VERY BRIEF HISTORY OF JOINT CUSTODY

James Cook died on February 21, 2009 at the age of 85.  He is considered to be the founding father of joint custody laws in the United States.  In the 1970’s, Cook was going through a bitter divorce.  He asked for joint custody of his son, but was denied because the law favored giving custody of the children to the mother.  He ultimately lost his battle for custody, but lobbied extensively for the joint custody laws that we enjoy today.  http://www.latimes.com/news/obituaries/la-me-james-cook12-2009mar12,0,1547708.story

 

HOW MINNESOTA FAMILY COURTS TEND TO VIEW JOINT CUSTODY

There is still a strong presumption that the mother is the primary caretaker of young children.  This is not codified in anywhere in the law, but is certainly present in the results of disputed custody cases.  Consider that in disputed custody cases, both parents will typically present themselves as being primary caretakers of the children.  In such cases, Courts routinely rely on the impressions of custody evaluators or guardians ad litem to provide investigative feedback as to which parent served as primary caretaker (along with other factors which may not be as gender-skewed).  Then, if the case does not resolve itself after a custody evaluation, the Court (at least in Minnesota), will accept the custody evaluation as evidence in the case, and will take testimony to determine who is, in fact, the primary caretaker of the children.  Any bias by any professional involved in the case may result in a result that is gender-biased against the father–even though the law is gender neutral.

 

WHAT EXPERIENCE TEACHES US ABOUT CHILD CUSTODY

In my experience, these biases are best resolved by carefully establishing through testimony and documentary evidence that my client performs all or many of all the tasks associated with being a primary caretaker.  It is especially helpful if this evidence is objective.  For example, if my client took the children to every doctor and dentist visit, the care provider notes will indicate it.  If my client attended all student conferences, there will be a record of it.  If my client signs off on all the children’s homework, there is evidence.  If my client does all the transportation to and from daycare or extracurricular activities, there may be no documentary evidence of it, but there is probably some testimonial evidence of it. 

 

I would not risk my client’s relationship with his children based on the ideal of the unbiased judiciary.

 

Jennifer Moore
Moore Family Law, P.A.
3350 Annapolis Lane North, Suite C
Plymouth,  MN 55447
(763) 951-7330
jennifer.moore@moorefamilylawMN.com
 

This week, ABC’s Good Morning America had a feature on couples that are going through the divorce process while still living together.  Here is the link to the story:  http://abcnews.go.com/video/playerIndex?id=6912479

Be Careful About Living Arrangements During Your Divorce

I find this to be a very difficult choice for my clients.  Divorce places you in an adversarial situation with your spouse.  You are often fighting over very limited resources.  And it’s not uncommon for the couple to have diverse views about the future.  If you can work out some ground rules that allow you to continue living together, it is a cost-saving option.  Such ground rules should definitely include issues such as sleeping arrangements, parenting time, financial responsibilities, family time, and when/where/how the divorce will be discussed.  You will have to be more adult than your emotions may want you to be.

Think of Your Children

Other cost-saving options include moving in with family or friends, moving in with a room-mate, and renting a smaller apartment than you might otherwise want.  If you have children, ensure that you obtain living arrangements that will permit parenting time.  Your space doesn’t have to be perfect, but it needs to be safe for your children. 

 Thank you!  You can return to www.MooreFamilyLawMN.com for more information on family law, divorce, alimony, spousal support, custody, and child support.  There you will also find information on our will drafting, legacy planning, trusts and estates and probate practice.