Minnesota Divorce and Family Law Blog

Moving Out of State With Minor Children

One important change in Minnesota law in recent years pertains to changing the state of residence of minor children.  Previously, Minnesota was one of a minority of U.S. states to allow a custodial parent to move with a child to another state unless the non-moving parent proved that the move was contrary to the child's interests.  That is, previously, the non-moving parent had the burden of proof, and if the burden of proof was unmet, the moving parent was granted the right to change the child's state of residence.

The current law in Minnesota now matches the majority of other jurisdictions: the moving parent has the burden of proof, to show that the move is consistent with the child's interests.  Minnesota Statute Section 518.175, subd. 3, provides as follows:

(a) The parent with whom the child resides shall not move the residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree.  If the purpose of the move is to interfere with parenting time given to the other parent by the decree, the court shall not permit the child's residence to be moved to another state. 

(b) The court shall apply a best interests standard when considering the request of the parent with whom the child resides to move the child's residence to another state. The factors the court must consider in determining the child's best interests include, but are not limited to:

 

(1) the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child's life; 

(2) the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration special needs of the child;

 

(3) the feasibility of preserving the relationship between the nonrelocating person and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties; 

(4) the child's preference, taking into consideration the age and maturity of the child; 

(5) whether there is an established pattern of conduct of the person seeking the relocation either to promote or thwart the relationship of the child and the nonrelocating person.

It is important to consider that, in many cases, the burden of proof is not dispositive.  If the moving parent has a compelling basis for moving the child, the court would permit the move, whether the moving parent or non-moving parent had the burden of proof.  Conversely, if the moving parent has a weak case for moving, it would not matter whether the moving parent or the non-moving parent had the burden of proof; the request to move would be denied.  The recent shift in the law impacts those cases in which the moving parent arguably has a strong basis for moving the child, but the non-moving parent has an equally strong basis for opposing the move.  

Moreover, as with most other custody and parenting issues, the family court is likely to rely on the observations and recommendations of a custody expert or parenting neutral in determining the relative merits of a moving parent's contentions versus the non-moving parent's oppositions.  

Don't Take (All) the Money and Run

At the outset of a divorce, should you clean out the joint account?  Or should you refrain from cleaning out the joint account, just to see the account cleaned out by your ex?

Suppose there is $10,000 in the account.  If you take the $10,000, your spouse is likely to cry foul, and you may well live to regret what can be perceived as an act of bad faith.  But if you do nothing, can you trust that your spouse won't take all the funds?  Will it be sufficient consolation to you that your spouse has painted himself or herself as a scoundrel?  (That won't pay the rent.)

If you feel like you must take some action, rather than doing nothing, you might consider withdrawing $5,000 (half the balance) and placing it into a separate account solely in your name.  Your spouse has much less reason to cry foul.  But you also pre-empt your spouse from unfairly secreting all of the joint funds without your knowledge.

Why Mediation Is a Good Idea

Family law mediation is a forum in which a neutral party (the mediator) meets with parties to help facilitate a settlement of the disputed issues or, in the alternative, to rule out settlement exhaustively, and help the parties reach an impasse.  The mediator has no authority to make a decision or impose something upon one of the parties against their will; and the process is confidential.

There are three basic reasons that family law mediation is a good idea.  (Only one has to do with settling the case short of trial in family court.)  First, if the mediator is successful in facilitating a resolution, the case concludes without protracted litigation.  Second, most family court judges will insist that there be efforts to settle the case out of court before proceeding with trial.  Third, it is a helpful trial preparation tool. 

It is important to note that the latter two reasons are applicable if mediation is unsuccessful, that there is more to proceeding with mediation than getting the case settled.  If you appear before the family court for trial, you are likely to be in better standing with the family court judge if the judge knows that the court's decision is necessary, and the dispute is compelling enough not to have been resolved in mediation. The impasse reached in mediation is more meaningful than the impasse reached when a couple with communication problems stops speaking to each other.  

Finally, for purposes of trial preparation, mediation allows the courtroom disputes to be narrowed, and more sharply defined.  The confidential communications, while inadmissible in court, do provide some insight about the strengths and weaknesses of your case and the opposing party's case.  The family court judge who decides the case is likely to navigate through similar logic, questions and considerations that play out in the mediation sessions.  The trial of a case in which mediate was unsuccessfully attempted is more effective for the parties and the court than a trial proceeding that transpires from "square one."  

 

  

Financial Attrition

The goal of family courts is to render court orders (or approve parties' stipulations) that address a child's best interests (regarding custody and parenting time) or a fair and equitable settlement (regarding property and finances).  In the process of a family law dispute, one would like to think that both sides have a solid basis for their arguments, and that if the dispute persists through the court process, that it is the result of good faith and meritorious claims.  Or, if the dispute does not persist through a contested court process, that it has to do with one party having a clearly stronger claim as to the child's best interests, or what is fair and equitable in the circumstances.  

Unfortunately, in some instances, the outcome of the dispute is based on something that is not connected to a child's best interests or what is fair and equitable.  Instead it is based on financial attrition.  That is, on one party having the financial means to pursue the dispute, regardless of the merits of that party's position, while the other party lacks the means to advance their argument.  If one party has the funds to hire an attorney to proceed in the dispute (with or without a solid basis on the merits) and the other party does not, the result will not necessarily be proper justice.

As an example, if a parenting neutral recommends a certainly custody arrangement or parenting plan, and one of the parties is aggrieved by that recommendation, that party may hire a custody expert to contest the neutral recommendations.  Usually, a party cannot do that without substantial financial investment.  Oftentimes, when someone challenges neutral recommendations, while they may have the financial means to hire the expert, the facts and circumstances do not warrant overturning the neutral recommendations.  Yet, the party favored by the recommendations may lack the financial means to defend against the challenge of the aggrieved party.  The outcome of the dispute may be different from what is truly in the child's best interests, simply because one party had funds to fight, and other party did not.   

There is an "up" side to financial attrition, as well.  Someone who lacks a good-faith argument for their position, but also lacks the means to advance the argument, is foreclosed from manipulating the court process to gain unfair advantage.  

What makes the issue of financial attrition even more complex is this: sometimes an argument clearly has good faith, or clearly LACKS good faith, but other times, it is not so clear.  And someone may think their opponent is acting in bad faith, but the family court judge sees it differently.  Also, oftentimes, it is clear that one party has substantially greater means than the other; but not always.  (Someone with multimillionaire parents theoretically has the means to invest substantial sums in a family court dispute, but not if the parents are unwilling to contribute to the effort.)  Even less clear is whether the party with greater means has a misguided agenda (as opposed to an argument based upon genuine good faith).    

In the end, financial attrition may be in the eye of the beholder.  Whether real or perceived, it is an unwelcome factor in the family court process.  

Dividing Personal Property

When a couple divorces, the personal property must be divided.  That includes households goods and furnishings, and general "stuff" in the home.  While the division of items can often be a contentious subject, family court judges discourage spouses from devoting too much time and emotion (and expense) to it.  

In many cases, the spouses divide the personal property when they establish separate households.  But in other cases, a spouse who has departed from the marital home may have living arrangements that are temporary, or lack sufficient space to accommodate half of the couple's belongings.  If one spouse has all (or nearly all) the personal property, there are several common resolutions, other than renting storage space.  The spouses may agree to an itemized division, memorialized in writing, to be implemented on a certain date, or within a certain time period.  It may be agreed that one spouse is keeping all, or nearly all, the property items (because the other spouse doesn't really want a lot of "stuff" anyway), the parties agree on a reasonable value for the items, and that value is accounted for in the overall division of assets and liabilities.  In some cases, a mediator or arbitrator is appointed to oversee the parties taking turns choosing items, one by one.  A garage sale, and division of proceeds, is a common idea that is not commonly implemented.  (The property items usually have more value to one or both spouses than they do to any third-party willing-buyers.)  

If the spouses must incur legal fees in a dispute about personal property, there may be a danger of spending more in legal fees than one would spend in replacing the disputed property items.  

There are family court anecdotes about judges unhappy with couples bickering over the stuff -- such as ordering one party to divide the items into two groups and allowing the OTHER party to choose one of the groups of items.  Or threatening to toss a disputed item out a fourth story window if the parties do not quickly resolve the dispute on their own.  In the end, it is better if the division of personal property is resolved without the need for the family court to make a ruling.   

Domestic Abuse Order for Protection Proceedings

When a domestic abuse case comes before the family court, the responding party has three choices: 

1. Admit the allegations of abuse (resulting in issuance of the requested Order for Protection);

2. Deny the allegations and proceed with an evidentiary hearing (usually scheduled for a day one to two weeks later, but occasionally takes place later the same day of the admit/deny hearing);

3. Deny the allegations, but assent to the issuance of the Order for Protection.  In this instance, the court enters the Order for Protection without a finding of abuse, and the Order pre-empts future contact and/or abusive actions without regard for what happened in the past.   

If there is an evidentiary hearing, the court considers the testimony of both parties, and any other witnesses or evidence, and decides whether to issue the Order for Protection.

If there are pending marriage dissolution or child custody proceedings involving the same family, the district court judge in the domestic abuse action will usually give consideration to that, and narrowly tailor the provisions of any Order for Protection so that the dissolution or custody proceedings are not impacted greatly by the domestic abuse action.

The advantages of assenting to the Order include avoiding the airing of "dirty laundry" at an evidentiary hearing, as well as the risk of the court deciding in favor of the petitioning party.  The disadvantages of assenting to the Order include the concern of violating the terms of the Order (even inadvertantly), and the chilling effect that such an Order has on communication if the parties have minor children and/or if the parties are negotiating the terms of their marriage dissolution.    

The House: Yesterday's Asset is Today's Liability

In a divorce, when Spouse A leaves the marital homestead in the hands of Spouse B, typically Spouse B must buy out the marital interest of Spouse A.  At least, that is how things used to be, before the current era of the depressed housing market.  Today, it is not unusual for Spouse A to leave the house behind,and not to be bought out by Spouse B at all.  The departing spouse is likely to be only too happy to leave the mortgage payment behind as well, and to get out from underneath the burden of a big house payment and shrinking home equity.  

If a family is struggling in this economy to stay current on a hefty house payment, that concern grows exponentially in the midst of a divorce.  It has always been difficult to support the two individual households of a separated couple on the same income as before the separation.  Add to that the fact that home values that are not appreciating, and it is nearly impossible for a family to stay afloat financially.  

Selling the house tends to be an even drearier prospect.  One is likely to lose money on the sale, with so many families encumbered by a second mortgage or home equity line of credit.  Renting typically costs the same, or more, than a house payment.  Most importantly, it is a very bad time to market a residential property without the home being "priced to sell."  Most financial planners will suggest that someone stay put where they are, and ride out the bad housing market (which could take years).  

If a divorcing couple sees fit to sell the marital homestead in this unfriendly market, it is likely an effort to tap into the opportunity to purchase a downsized residence.  The upside of a bad market for selling, after all, is a good market for buying.

For now, and for the next few years, breaking even on one's home equity is the best that most divorcing couples can hope for.   These sobering realities, and realistic expectations, will carry the day until the housing market recovers.   

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.