Minnesota Divorce and Family Law

Emergency Court Orders and Expedited Relief

If you want the court grant you relief, or order your spouse / ex-spouse / child's other parent to do something, the typical process takes several weeks. You must obtain a hearing date, file with the family court certain documents, send copies of the documents to the other party, and then wait for the family court to issue the order. Often, the court cannot offer a hearing date that is less than four to six weeks off. Add to that the amount of time the court requires to issue its order after the hearing, which can vary from several days to three months.

In emergency situations, the court will grant relief without that delay. Of course, the court must be moved with the compelling nature of the request to issue an expedited order. Domestic abuse orders for protection are granted in such circumstances. Emergency custody orders may result from abusive situations, or cases in which one parent is depriving the other parent of all contact with a child. Dire financial needs may also be addressed with an expedited order.

It is important to consider the fact that the family court is unwilling to grant expedited relief in all but the most compelling circumstances. The family court sees dozens of cases each week, and unfortunately, most people in need of expedited relief must nevertheless wait several weeks for the court to issue an order.

Joint Physical Custody Presumption Subjected to Study

Today there was a committee hearing at the Minnesota Legislature on a proposed bill to enact a presumption in favor of joint physical custody. The bill would establish a rebuttable presumption that joint physical custody is in the best interests of a minor child. (Minnesota law already has a presumption that joint legal custody is in the best interests of the child, if one or both parties requests it, except in cases of domestic abuse.)

The committee heard testimony from supporters of the measure, who are pushing for family law reform due to their claims that noncustodial parents are not treated fairly in Minnesota family courts. The committee also heard testimony from opponents who expressed concern that a presumption of joint physical custody would have an adverse impact on domestic abuse victims, place children in the middle of conflict, and would be based upon a misunderstanding of the current state of the law, which does not contain a presumption AGAINST joint physical custody nor a presumption in favor of sole physical custody.

As a practicing divorce attorney for many years, my clients include both mothers and fathers; custodial parents and noncustodial parents; victims, perpetrators, and falsely accused perpetrators, of domestic abuse. The fact is, currently, many family court orders award joint physical custody, many orders grant sole custody to dad, and many orders grant sole custody to mom. There is a growing trend to avoid the label of physical custody altogether, and use parenting plans and/or alternate terminology. A presumption of joint physical custody will not help the family court system.

Joint physical custody should not be confused with co-parenting. It is not necessary for a child's parents to have joint physical custody in order for the child to have a healthy relationship with BOTH parents. It IS necessary for the child's parents to properly CO-PARENT (or to have the active involvement of parenting neutrals). But joint physical custody is not indispensable, and for many families, would actually INCREASE the conflict that the child experiences, instead of lessening the conflict.

The bill, which makes exceptions to the proposed joint physical custody presumption in cases of domestic abuse, would require a court to make detailed findings to overcome the presumption and order something other than joint physical custody. So the proponents of this bill are seeking to have the family court forum be a place where courts decide whether someone should NOT have joint physical custody and make detailed findings about why NOT. The family courts - with which many individual committee members recounted their own personal, bad experiences - are already a forum that seems rife with negative energy. Yet what is proposed is for the presumption to be joint physical custody, and for all the focus of contested custody proceedings to be what these parents are NOT doing right in order NOT to be awarded joint physical custody. It adds more misfortune to what is, for many, the most unfortunate experience of their lives.

Moreover, either parent may be willing to allow the other parent to have sole physical custody, but not when faced with a presumption in favor of joint physical custody. They may be unwilling to "opt out" of the joint physical custody presumption (even though they would otherwise not fight for joint physical custody) figuring that they would appear to be turning their back on their child. Again, for many families in transition, the focus needs to be on REDUCING THE CONFLICT, not landing a coveted label of "joint physical custody". In many instances, temporary or permanent custody arrangements other than joint physical custody are in the child's best interests.

One other concern is the domestic abuse exception that is written into the bill. The domestic abuse laws of Minnesota are good laws, with a very bad downside: false accusations. Domestic abuse proceedings are the classic, quintessential "he said, she said", and many litigants use the laws, in bad faith, as a tactic for undue advantage. This unfortunate practice would become only more common in the instance of a joint physical custody presumption with a domestic abuse exception.

Ultimately, this afternoon, the bill proposal was amended (i.e., compromised) to refer the issue of a joint physical custody presumption to a study group, to explore the family court processes, and determine what steps need to be made to improve the system. Many of the committee members expressed disappointment that such an action was, in fact, a failure to act. In my humble opinion, the bigger failure would have been enacting a joint physical custody presumption.

When One Attorney is Involved in a Divorce

In Minnesota and most other states, one attorney cannot represent both parties in a family court proceeding. (Do not be misled by the movie Juno!) Yet it is common for divorces to happen with only one attorney involved. When one attorney is involved, that attorney represents one of the parties; the other party waives counsel.

This situation begins with the premise that both parties are entitled to have an attorney. Commonly each party has an attorney representing them, and advising them regarding their interests. Along with the right to counsel comes the right to waive counsel. If both parties are unrepresented, both are waiving their right to counsel. (In many instances, a party who waives counsel will have consulted - but not retained - an attorney.)

If one party is represented, the other party can choose not to have an attorney. But the party who chooses not to have an attorney should not look to the other party's attorney for legal advice or guidance as to whether or not to accept a settlement proposal. An attorney involved in the process should provide representation and advice to only one party.

Home Alone

Yes, over the holidays I spotted the last scene of the movie Home Alone while switching channels. Who didn't? So, how old should a child be to be left home alone? One of the most common questions, especially when children are in the care of a single (and busy) parent.

A few years ago, I needed to address this question in an actual case when I was serving as parenting time expeditor for a divorced couple with one child. There is no law directly on point, so I contacted a child development professional. The answer was, as so often is the case: it depends. Different children have different maturity levels, and differing ability to handle the responsibility of being alone.

Five-year-olds are clearly too young. Most older teenagers are old enough be home alone. The issue arises most when there is a child involved between the ages of eight and eleven, which is the period of time during which most children grow old enough to be home alone. Also, when there are multiple children involved, parents may disagree on how old the older child(ren) need(s) to be to supervise the younger child(ren).

Ultimately, the resolution lies either in the parents' agreement about what is reasonable or, in the absence of agreement, the recommendation of a neutral professional.

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. 

The Status Quo

In many instances when facing a dispute during a divorce or custody case, it is important to be mindful of the existing circumstances: where the child is living; who is in possession of the house; whether both spouses are working outside the home.   It is important because, all other things being equal, the court is very likely to maintain the status quo, if possible, when deciding an issue. 

This is especially important in the case of temporary orders (i.e., court orders that are in effect while the case is pending).  If the court must decide the temporary parenting schedule, the court will likely need a specific reason to CHANGE what the current pattern is.  Unless there is good reason, the court is likely to stick to the "status quo."  If one party has refrained from working outside the home for several years, the court is unlikely to expect that party to immediately produce substantial income.  Instead, the court will (at least temporarily) maintain the status quo, and refrain from expecting separate earnings from that party.

The status quo issue is an important consideration when someone is deciding whether or not to move out of the marital residence.  If someone moves out of the house, they can be creating a new "status quo" that they may need to be prepared to stick with.  Someone who moves out, leaving children at the marital home with the other parent, allows for a new "status quo" that the children are living with one parent in the home.  The party who moved out may have a difficult time later obtaining sole custody, or even joint custody, based upon the status quo established with the move-out. 

The same can be said of later obtaining possession of the house.  If one party moves out, then the family court is unlikely to impose upon the other party the disruption of moving out over his or her objection. 

Removing a Judge

In a Minnesota family law case, each party has one opportunity to remove the assigned judge without having to provide a reason.  The case is then assigned to a different judge.  The removal must be made within ten days, and must be made before the judge takes any substantive action on the case. 

If someone wants to remove the judge after reassignment, after the ten day deadline, or after the judge has taken substantive action on the case, it requires the judge's assent (either by the judge's own action, or by the requesting party's motion).  Many parties wish for, or even seek, removal in these instances; but relatively, very few are granted. 

How Long Before the Court Order is Issued?

When a family court judge or referee presides over a Minnesota family court hearing, he or she may let the parties and attorneys know the court's decision at the close of the hearing.  More often, however, the court will make known its decision later, after taking the matter under advisement.  When the court takes a matter under advisement, it may be necessary for the court and the court's staff to research a legal issue, dig a little deeper into the file for information on the facts and circumstances, or just plain give the matter some more thought. 

The family courts operate under a general guideline that the court order will be issued within ninety (90) days of the hearing.  That time frame is extended when there are additional submissions after the hearing, such as a legal memorandum, or specific documents that the court has requested.  In those instances, the court must issue the order within 90 days of the final submission.

That said, it is more common for the court to issue an order within one to two weeks for motions involving one or two issues, and several weeks for motions involving several issues and/or complex legal matters. 

Settlement Versus Trial

Why do some divorce and child custody cases settle out of court, and some cases have to go to trial?  There are many factors that determine whether a family law case will settle outside of court, the most important which involve the willingness of the parties to compromise, and the willingness of the attorneys for the parties to facilitate that compromise. 

Preparing for and proceeding with a family court trial is a long, expensive process.  If the parties are close to reaching an agreement, but are unable to arrive at the final stipulated terms, both parties are likely to spend more on the expense of going to trial than they would if they EACH accepted the other party's terms. 

Conversely, if the parties are not close to reaching an agreement, there most likely is a principal issue that needs to be addressed by the family court.  Examples are whether there should be any spousal maintenance at all; whether an antenuptial agreement is void or not; or whether a third party is entitled to visitation with a minor child. 

In the first example, the AMOUNT of spousal maintenance might be resolved by compromise, but only if both parties presume that there will be spousal maintenance.  Otherwise, the dispute about whether there should be spousal maintenance at all may need to be decided by the court.  In the second example, how to apply the terms of an antenuptial agreement can be negotiated and compromised.  But if there is a fundamental question about whether the antenuptial agreement is even valid or not, the family court may need to render a decision.  In the third example, discussions about a visitation schedule cannot take place if there is disagreement about who is entitled to have the court-ordered right to have the subject minor child in their care in the first place.

One key advantage to a settlement out of court is the fact that the parties have the final say in the terms of their divorce or child custody dispute, rather than the court.  In all likelihood, the parties will be assenting to a conclusion that is not as favorable as their best possible result in court.  But it may be worth avoiding the risk of going to court and not getting the best possible result.