Minnesota Divorce and Family Law Blog

Formal Discovery Versus Informal Discovery

Discovery is the process of obtaining and providing information in the family court proceeding.  The formal process of discovery includes interrogatories; requests for production of documents; and depositions.  Interrogatories are questions or demands for information that must be answered in writing.  Requests for production of documents involve providing copies of documents such as bank statements, asset verifications, tax returns and real estate records.  Depositions are oral proceedings in which the person answering questions is providing sworn testimony, and the questions and answers are placed on record by a court reporter. 

In many cases, it is not necessary to proceed with formal discovery, if there is enough cooperation between the parties and their attorneys.  In divorce cases, the parties are required by law to disclose relevant information so as not to defraud each other (or the court) in arriving at a fair and equitable settlement.  Consequently, it is often possible to streamline the exchange of information in a manner that is mutually beneficial and economical. 

Informal discovery typically happens by letter, or by meeting in person, or both.  The person providing information furnishes sufficient detail and supporting documentation in a manner that obviates sworn testimony at a deposition.  The person on the receiving end, in following up and requesting additional detail or additional documentation, often does not need a great deal of the information that would be part of the formal discovery process.  The exchange of information is tailored to the specific claims and relevant circumstances of the case, instead of the "fishing expedition" that the formal discovery process is characterized as by many lawyers and judges.

Child Custody Neutrals

If divorcing or separating parents disagree about child custody or parenting arrangements, it is likely necessary for a neutral professional to be involved in resolving the dispute.  The most common neutral professionals are custody evaluators, guardians ad litem, parenting time expeditors, custody mediators and parenting consultants. 

Custody evaluators investigate the facts and circumstances surrounding the child's situation, and render a written report with observations, comments and recommendations.  Typically the custody evaluation takes three to four months.  The custody evaluator will interview each parent; meet with the child (usually at least once in each parent's care); and contact collaterals such as family members, teachers and medical professionals.  The custody evaluator does not have the authority to make a final decision, but his or her recommendations are given substantial weight when the court makes that decision.  The custody evaluator does not stay involved in the case beyond the point that the custody report is issued.

Guardians ad litem are appointed to represent the interests of the child.  A guardian ad litem is not literally the child's attorney, and may or may not be a practicing attorney.  The guardian ad litem becomes familiar with the child and the child's circumstances so as to be able to inform the court of what is in the child's best interests.  The guardian does not have the authority to make the custody decision, but the guardian's comments and observations are given substantial weight.  The guardian may be involved in the case over the course of weeks or months (and less commonly, years). 

Parenting time expeditors are described in a separate post.  Custody mediators meet with the parents to attempt to facilitate an agreement.  The mediator typically will not meet with the child directly, and has no authority to make a decision, and no opportunity to speak directly to the court. 

A parenting consultant has broader authority that is usually defined in the agreement that provides for the consultant's appointment.  The consultant will meet with the parties and will determine to what degree it is necessary and appropriate for the consultant to meet with the child.  The consultant typically will attempt to mediate the dispute, as a mediator would.  But if there is an impasse, unlike a mediator, a consultant often has the authority to make a decision.  Depending on the terms of the consultant's appointment, the consultant's decision may be binding on the parties and subject to review by the family court. 

Different child custody cases can benefit from different child custody neutrals, depending upon the facts and circumstances of the custody dispute.  The purpose of the neutral is to bring the dispute to a conclusion relatively quickly and inexpensively, and to avoid the high conflict of family court litigation.