Tag: Child Custody

Role of a Parenting Consultant

A Parenting Consultant (PC) has similar functions as a Parenting Time Expeditor (which we discussed in a previous post).  Parenting Consultants however, are not authorized by Minnesota Statute and are created solely on the basis of a contract.  Since there is no statutory authority for appointment of a parenting consultant, you cannot be court ordered to have one assigned to your case.  Parenting consultants can only be court ordered by the agreement of both parties.

Since a parenting consultant is created by contract, they essentially can be appointed for whatever purpose that they are needed for.  Often time a parenting consultant is appointed with the same enumerated powers that a parenting time expeditor has but in addition they are granted the authority to make permanent schedule changes.  One situation where having a parenting consultant in place to increase or decrease parenting time could be where a parent has issues with chemical dependency.  A parenting consultant can assist the parties in monitoring sobriety and increase parenting time if sobriety continues, or decrease time if there is a relapse.  Another example where a parenting consultant that has authority to increase time can be beneficial is with young children.  Parents may agree that a limited parenting time schedule is appropriate when their child is an infant.  However, a schedule for a 3 month old baby is not appropriate once the child gets older.  A parenting consultant can assist parents in increasing parenting time if they do not agree.

Parenting consultants may also be given the authority to decide legal custody decisions when joint legal custodians cannot agree.  This can be helpful if you are struggling with school choice for your children, or if you cannot agree on whether or not your child needs to get braces.  A parenting consultant may also be of value in deciding which extra-curricular activities that children participate in, and who pays for them.

Even though the issues decided by parenting consultants could be simply brought before the court in a motion, there are many advantage of using a parenting consultant versus going through the traditional court route.  Depending on the county that your case is venued in, motion hearing dates could be booked out as much as three months.  Even when you do get to your hearing date, your judicial officer statutorily has 90 days before they have to issue a decision.  You could be waiting more than 6 months to get your dispute resolved.  Judicial officers are limited in the amount of evidence that they can consider.  They can’t simply call up witnesses, teachers, or counselors and talk to them on the telephone whereas a parenting consultant can.

If you think that your case would benefit from having a parenting consultant, contact our office for a consultation with one of our experienced family law attorneys.  We have drafted many parenting consultant contracts and can assist you in choosing what authority to grant the parenting consultant.  Our attorneys also have the experience necessary to recommend the right parenting consultant for your case.

Basics on Minnesota Child Custody

Probably the most frequently asked question of Minnesota family law lawyers is how Minnesota child custody laws work.  Most clients want sole or shared custody of the children, but they’re not really sure how it works or even what that means.  The first thing you need to know about Minnesota child custody is that there are two kinds of child custody in Minnesota – legal and physical.

Legal Custody deals with decisions having to do with a child’s health care (including dental), religious and educational upbringing.  Legal custody is often simplified to: doctor, preacher, teacher.  In Minnesota child custody law, legal custody is presumed to be joint, requiring both parents to collaborate when making the decisions affecting their child’s development. While some Minnesota family lawyers may advise their clients that joint legal custody does not restrict one parent from unilaterally making legal custody decisions, the courts will often intervene, and may even penalize, a parent who denies the other legal custodial parent’s right to participate in the decision-making process.

If a court is considering joint legal custody between both parents, it must also consider factors placed in the statute that should be used to determine whether joint legal custody is advisable.  Specifically, the court will look at the ability of the parents to cooperate, if they have the ability to work together to resolve any differences they may have about the child or children, if it would be detrimental for one parent to have sole custody, and whether there has been any domestic abuse in the relationship between the parties.

Physical Custody deals with the routine daily care and control and residence of the child.  Physical custody is often simplified as, “where a child lays his or her head at night.”  Physical custody can rest with one parent as “sole” physical custody or with both parents who would then have “joint” physical custody.

A lot of parents believe physical custody also dictates visitation rights in Minnesota.  Visitation rights in Minnesota are actually referred to as parenting time, which has to do with the specific schedule each parent has with the child or children.  Parenting time is separate from custody and will be discussed in greater depth in a future blog.

Legal custody and physical custody in Minnesota can be determined by the court, but is more often determined through collaboration between the parents to develop a custodial arrangement that is in the child’s best interests and works best for each parent.  If you would like to determine legal and physical custody rights for your child, contact  us to discuss the specific facts of your case.

Responsibilities of a Guardian Ad Litem

Sometimes there are more parties in a Minnesota child custody case than just the mother and the father. Sometimes the court will appoint a Guardian Ad Litem (GAL) to represent the interests of the child and advise the court with respect to custody and parenting time.  Sometimes this appointment is mandatory, such as in cases where the court has reason to believe the child is a victim of domestic abuse or neglect, and sometimes this appointment is only permissive, meaning the court can, but does not have to, appoint a GAL.  Due to budget constraints, permissive appointments are becoming less available.  Obviously, some counties have more resources available than others.

Pursuant to Minnesota statute §518.165, subd.2a, when a GAL is appointed to a Minnesota family law case, the GAL has the following responsibilities:

1)  to conduct an independent investigation to determine the facts relevant to the situation of the child and the family; this investigation must include:

  • reviewing relevant documents;
  • meeting with and observing the child in the home setting and considering the child’s wishes, as appropriate; and
  • interviewing parents, caregivers, and others with knowledge relevant to the case.

2)  to advocate for the child’s best interests and for appropriate community services;

3)  to maintain confidentiality of information;

4)  to monitor the child’s best interests throughout the proceedings; and

5)  to present written reports on the child’s best interests.

The information gathered and presented to the court by the GAL is very persuasive.  The court is likely to order something substantially the same or similar to the recommendations of the guardian. To discuss whether appointment of a Guardian Ad Litem might be appropriate in your case, our Minnesota family lawyers can offer you a consultation.

Joint Legal Custody and School Choice

What happens when you have joint legal custody and you disagree with your ex about where your child(ren) should attend school?  Legal custody is the right to determine the child(ren)’s upbringing including education.  Having joint legal custody means that the parties have equal rights and responsibilities to participate in the major decision making regarding the child(ren)’s education.  If you have joint legal custody this means that any changes regarding a child(ren)’s schooling need to be agreed upon by both parties.

Often disputes arise when it is time to enroll a child in Kindergarten or when one parent moves and neither party resides within the school district that the child(ren) were attending.  If both parents are unable to agree, then a motion must be filed in District Court to have a judicial officer make the decision.

The Court of Appeals has held that, in Minnesota, the District Court is to consider the best interests of the child found in Minnesota Statute §518.17.  Since these factors pertain mostly to custody determinations, the District Court is also permitted to consider other factors that they deem relevant.  The District Court cannot simply chose the school choice of the parent with sole physical custody without making a determination that it is in the best interest of the child.  In the situation where one parent has sole physical custody, the sole physical custodian does not have the power to unilaterally decide where the child(ren) should attend school.  The Minnesota child custody attorney’s at Wolf, Rohr, Gemberling and Allen P.A. will help you gather the necessary and relevant information to assist the District Court in making the appropriate decision for your child(ren).

Our family law attorneys at Wolf, Rohr, Gemberling and Allen P.A. are experienced in litigating issues of school choice in District Court and appealing school choice decisions to the Minnesota Court of Appeals.  If you are experiencing a school choice disagreement, call our office for a consultation.

Child Support Calculator – What is the Cost of Child Support?

The following child support calculator is based off of the guidelines set forth by the Minnesota Child Support statute, effective January, 2007.  The calculator does not necessarily reflect a court ordered liability, but is intended as an informational resource.

Information that you will need to obtain to use this calculator includes, but is not limited to, the following:

  • Each individual’s gross monthly income
  • The number of children present in each parent’s home
  • Existing spousal maintenance orders (if applicable)
  • The monthly cost of child care, health and dental coverage
  • The amount of court ordered parenting time
  • The amount each parent is currently paying in child support, for another child (if applicable)

Determining child support responsibilities can be a challenging assignment for any party, which is why we recommend hiring an experienced family law attorney to facilitate in these matters.  The attorneys at Wolf, Rohr, Gemberling and Allen, P.A. can advise you as to whether a deviation from the guidelines may be appropriate in your case.  For more information regarding child support, visit our Child Support FAQs page, or contact our MN Famil Law Firm today.)

The Dangers of Facebook in Child Custody Battles

Facebook has completely changed the way we share information, in both positive and negative ways.  It has allowed people to stay connected with old friends, but it has also allowed others to obtain information about us that we didn’t intend.  One area in which we are seeing the potential negative side effects of social media involves child custody.

How Facebook is used in Child Custody Battles

Believe it or not, Facebook has become a big source of information for litigators in child custody battles – even more than emails and text messages.  In a story reported by WTSP, one Tampa Bay, FL attorney reported that 90% of recent family law cases involved some social media activity.  The reason for this is that what you post online, or what others post about you, is documented evidence of your offline behavior, and can be used in court.  Often times this involves questionable photos, comments or other behavior that questions whether or not someone is a suitable parent.

Use Social Media with Caution

Everyone has done something embarrassing in his or her life, and the addition of Facebook has made many of these moments even more memorable.   But Facebook can be used to highlight the positive moments in your life as well.  Here a few tips on how to use Facebook responsibly:

  • Always remember that Facebook is public information.
  • Only post what you wouldn’t mind everyone in the world to see.
  • Never post something in the heat of an argument.
  • Don’t post anything that could offend others, or could be misunderstood.
  • Share only positive information.

At the law firm of Wolf, Rohr, Gemberling and Allen, P.A. we are here to represent your best interests.  For more information on how your needs will be represented, contact our MN Family Law Firm today.

What is a Parenting Plan?

In another post in our Defining Legal Terms Series, we help you to understand what a Parenting Plan is and why it is important to child custody matters.

A Parenting Plan is incorporated into your decree and addresses the agreed approach the parents will take while raising their children even though they live separately.  Parenting plans were created in hopes of reducing conflict between parents.  It often addresses fine details the parents agree on rather than just a schedule.  For example it can outline:

  • Procedures to follow when a child is ill or injured;
  • Restrictions on where parents may live;
  • Bedtimes, homework routines, when children can see R-rated movies, or other rules that create a united front in each home;
  • Procedures for how extra-curricular activities will be chosen;
  • Contact with extended family;
  • Communication methods.

Parenting plans can be as short or as detailed as the parents like.   We can help you draft the Parenting Plan that best fits your family’s needs.

If you would like to talk to one of our Family Law Lawyers about drafting a Parenting Plan, or regarding any other child custody questions please call us at 651-228-0720 or fill out our online contact form.

Legal Terms Defined: What is ICWA?

Indian Child Welfare Act (ICWA) is a federal law which protects Indian children who are members or eligible members of a federally recognized tribe.  The law allows the child’s tribe to be involved in the child’s case to help keep the community stable and to help eliminate the removal of children from their homes and then placing them in public and private agencies.  The tribe may intervene in the case and petition the case be moved to the tribal court.

To find more information on the ICWA law please visit their website here: http://www.nicwa.org/Indian_Child_Welfare_Act/faq/

 

Virtual Visitation A Real Option

Talks about virtual visitation aren’t new, but virtual visitation as a viable option in child custody cases is becoming more realistic and more common every day.

First, you may be wondering just what virtual visitation is.
Many people think of it as the next best thing to seeing your children in person. When parents can’t have face-to-face visits, they can have visits electronically – via email, instant message, video chats, texting, and more.

Most commonly, it allows parents who live in different locations than their children to be more consistent presences in their lives. However, it has been an option for parents who are incarcerated, parents who can’t see their children because of domestic violence disputes, or simply to supplement in-person visits for parents living in or near the same locations as their children.

So, why is it a more viable option today? For several reasons, ranging from affordable technology to state legislation.

Continue reading “Virtual Visitation A Real Option”

Custody in Minnesota: What does it mean?

Outside of the legal profession, custody is simple. After a divorce, who takes care of your children?

Within this simple question, though, other details come up.  Where will your children live? Who will make decisions about raising them?

There are two different kinds of custody and two different ways each can be awarded to a parent by the court.

Below are the ways the Minnesota Statute defines custody and our practical definitions:

Legal custody

  • Statutory definition: “Legal custody means the right to determine the child’s upbringing, including education, health care, and religious training.”
  • Practical definition: When you have sole legal custody, you alone make the major decisions about raising your child. When you have joint legal custody both you and your child’s other parent share in making major decisions about raising your child.

Physical custody and residence

  • Statutory definition: “Physical custody and residence means the routine daily care and control and the residence of the child.”
  • Practical definition: When you have sole physical custody your child resides mainly with you.  When you share joint physical custody, your child usually spends substantial time in both your home and your child’s other parent’s home.

Custody determination

  • Statute definition: “Custody determination means a court decision and court orders and instructions providing for the custody of a child, including parenting time, but does not include a decision relating to child support or any other monetary obligation of any person.”
  • Practical definition:  A custody determination sets forth the legal and physical custody arrangements for you child as defined above.  These orders may include, or may not include, financial responsibilities for each parent, as well.