Category Archives: Child Custody

Parental Alienation Issues Negatively Impact Children

A very troublesome issue in some Custody and Parenting Time disputes and Divorces is when a parent intentionally attempts to alienate the children from the other parent. Trying to prove the alienation can be difficult as often there are vastly different stories and claims made by both parents and oftentimes the parties and the children are the only witnesses to the disputed facts.  Most judges are extremely reluctant to allow or have children testify in court and due to budget crunches and other factors it can be very difficult to have the court appoint a guardian ad litem.  Custody studies are also becoming more and more expensive.

In these types of cases it is usually critical a competent psychological evaluator and/or custody expert be retained to assess the children and situation, which will require a court Order unless the opposing party or counsel agree to the assessment.  Often times the alienation is only discovered, after the fact, when there is Parent Reunification Counseling that is completed.

There can also be disputes whether an alleged abusive parent’s own conduct has caused the alienation instead of the opposing party. To successfully prove alienation  claims it is also important to have an experienced divorce attorney who is familiar with these type of unique issues.

Experts recognize the dire tragic impact serious alienation has on children as do some judges. A recent article, by Paul Reitman,  discusses the problems it can cause and the need for more study by the courts. I am including the article in this blog as it is important and helpful:

Courts need to study parental alienation
Courts need to study parental alienation
By: Paul Reitman May 19, 2017

I have been doing parental reunification therapy since 1990 up until 2017. Throughout the years I have been extremely frustrated with parental alienation being minimized by the courts and then being allowed to continue. The impact is serious and can have lifelong effects, and children who are alienated are at a higher risk for psychological and psychiatric disorders.
I would like to discuss the major issues that cause parental alienation to be so difficult to confront.
A syndrome, not a diagnosis
The DSM-5 (Diagnostic and Statistical Manual of Mental Disorders) did not recognize parental alienation as a diagnosis; therefore, the myth has developed that there is no such thing as parental alienation.
Another issue that comes up from time to time is that some courts believe that in any type of adversarial divorce parental alienation is a normal development. This simply is not true. There are many individuals who get divorced who have adversarial feelings towards each other but they are able to discriminate between their own feelings and the need for the child to have a significant relationship with their mother or father.
Parental alienation should not be a diagnosis because it is a syndrome. It is a syndrome that causes children to develop depressive disorders and anxiety disorders, as well as personality disorders, causing severe impairment in the child’s ability to establish future intimate relationships with members of the opposite sex.
Often, courts will simply acknowledge parental alienation and set up a course of action whereby a mental health professional is appointed to do parental reunification. Typically, this will occur once a week, which is totally inadequate to confront the alienating parent. Ideally, there should be a team of mental health professionals who have the appropriate credentials, i.e., training in clinical psychology with respect to child development, attachment theory, and the ability to diagnose individuals and children with mental disorders. They also should be able to assess for parental coaching.
When there are inadequate measures, the alienating parent will typically not discontinue the alienation and the children will typically identify with the alienating parent and create an alliance with that parent. This is not to be unexpected. Children and even adolescents have not matured cognitively to be able to discriminate and understand that they have a right to have a relationship with each parent and because of the psychic conflict and cognitive ambivalence they have, they will identify and ally themselves with one parent.
In my professional experience, it has been the exception when a judge ordered children to be removed from the alienating parent’s home and then participate in deprogramming with a clinical psychologist that has that expertise.
Furthermore, if the alienating parent will not cease his or her activities, then he or she should be required to have supervised visitation.
Comprehensive assessments
There is an array of mental health professionals who participate in parental reunification therapy. Competencies and expertise are crucial and once again, as discussed above, the mental health professional should have training in clinical psychology and the ability to diagnose mental disorders in children and adolescents as well as in adults.
Furthermore, comprehensive assessments are required and roles need to be delineated so that the mental health professional is not taking on too many roles. For example, if a psychologist is appointed to do assessments of the entire family to determine if there is in fact parental alienation occurring, then he or she should not be the reunification therapist.
Psychological assessment is an exquisite art that requires comprehensive training in understanding the uses and abuses of psychometric testing. So often I have encountered assessments utilizing the MMPI-II or the MMPI-II-RF as well as the MCMI-III. These tools report to give an assessment of psychopathology and psychopathy (symptoms of mental illness and symptoms of personality disorders).
However, when parents are in an adversarial relationship or an adversarial custody study, it will likely produce elevations on psychometric tools that are transient and not permanent. For example, a father who is being alienated from his children and is not getting any true psychological assistance or relief will likely endorse symptoms of paranoia, mistrust, anxiety and even depression. If this presentation is taken in a vacuum, it produces a false positive assessment of mental illnesses. The examiner must be trained in understanding reliability and validity of psychological testing as well as being able to be at the center of the assessment, often times dismissing elevations based upon transient symptoms.
Additionally, under the American Psychological Association Guidelines for Custody Studies, a psychologist should not make recommendations about parental alienation without seeing the mother, the father and the children. Seeing one parent only and not examining the children and then making recommendations that: a) parental alienation is occurring; b) the children should be removed from one parent’s household; and c) the children should be placed in a different household, is simply not ethical.
First, parental alienation is a pervasive pattern of confusing children, causing them a great deal of distress, depression and anxiety, and typically if they are living with the alienating parent, they are in a role reversal whereby they are becoming little adults taking care of the alienating parent.
Second, when partial interventions are made and the alienating parent is not understood and given the opportunity for therapy to confront the alienation, then it is highly unlikely that it will stop. I have had too many cases whereby a child at 15 was alienated and partial procedures were implemented and it never dented the child’s psychological status. It went on until the child became 18 and then simply terminated the relationship with the parent that has been alienated.
It is quite clear in the clinical literature that children who come from divorce are at higher risk for mental disorders. However, the literature and research is quite clear that children that are able to maintain and sustain a significant relationship with both parents have a much better chance of living normal lives and become productive.
I highly recommend to the judiciary and the Legislature that a study be undertaken to examine this syndrome and to become familiar with the type of interventions that are required in order to discontinue this syndrome that has significant adverse effects on children and adolescents.
Paul M. Reitman, Ph.D., L.P., F.A.C.F.E., has been a forensic and clinical psychologist since 1981. During that time, he has also practiced in the fields of hospital psychology, outpatient psychology, and has always maintained a clinical practice on both an outpatient and inpatient basis. he has always maintained a clinical practice and was a hospital psychologist up until 2017.

It should be clear alienation needs to be stopped as it can have devastating consequences to children.  If you face these issues immediately contact an experienced divorce attorney to take prompt steps to combat and prove the claims and seek appropriate relief.

Pitfalls In Handling Your Own Divorce

I have seen an increase in people trying to draft their own Divorce Judgment and Decree, which often leads to numerous problems and additional fees and expense to redraft the Decree or for the need to move to amend it because of ambiguities. Some terms or omissions can be impossible to correct afterwards.

If you have children, real estate, assets in excess of $20,000, pensions or issues relating to custody, parenting time, spousal maintenance or child support it is best to retain an experienced family law attorney to draft the final paperwork.

I have represented numerous clients when their paperwork has been rejected by the trial court or worse has been accepted, but has failed to properly address all issues or foreseeable issues. Family law is complicated and has extensive statutes and common law set forth in a large scope of cases that a layman will not understand or properly address. Neither the court or the clerk’s office can or will give legal advice.

Once the Decree is accepted and filed many of the terms are not modifiable at a later time. Property settlements become final. Other terms may be modifiable if there is a substantial change in circumstances, but still may be difficult and expensive to attempt to modify.

There are numerous nuances in drafting custody and parenting plans that would benefit the input of an experienced divorce attorney. These agreements are generally not easy to change or modify. Vague or incomplete parenting plans often leads to numerous disputes and issues that can cause the noncustodial parent to lose important parenting time when a dispute arises.

Determining child support under the calculator is not as easy as it seems as there are numerous collateral issues that may not be properly addressed such as imputing income for less than full-time employment, bonus income, or issues and complexities when dealing with self employment, or overtime income. There are also numerous complexities in determining what the actual percentage of parenting time is for each parent is under parenting time schedules. A lawyer can also make sure the issue of the child dependency tax exemptions are properly addressed and drafted in the decree as well as other matters such as security in life insurance is included to make sure there is adequate support in the event of a death.

Spousal maintenance terms have to be dealt with extremely carefully or unintended results can easily happen. If proper waivers are not included with specialized language a party may leave itself open for extended or continuing spousal maintenance or attempted motions to do so. A lawyer should be used in every case dealing with spousal maintenance cases.

If you own a home it is also important to have a lawyer’s assistance. It is essential to make sure the complete legal description is included or you can have expensive future title problems. An agreement to sell the home needs critical detailed information included to properly address possible unforeseen issues such as difficulties in facilitating the sale or default or possible short sale ramifications and other issues, including possession, payment requirements and cooperation terms.

Dividing retirement assets and pensions have many complex issues that can lead to serious unintended consequences if not properly addressed. Survival benefits, valuation and tax issues and other complexities needs the input and advice of an experienced attorney. Often a separate Order (QDRO) needs to be prepared with numerous electives and options that can involve tens of thousands of dollars in differences depending on the electives selected, or more, if there are errors made that generally may not be later modifiable.

Generally when a divorce starts many people are on an emotional roller coaster and often have some temporary depression issues. Many people have feelings of guilt or remorse or even anger and cannot properly evaluate what is fair and equitable or consistent with the law. They may overlook important issues or make unwise concessions that may haunt them for years as they try dig out of a deep financial hole or give up custody or parenting time they cannot later change.  They may find they are entitled to much more than they are aware of if they overlook nonmarital assets or other spousal maintenance issues. A good family law attorney will protect you from making a poor decision without careful thought and evaluation.

The family law rules and rules of civil procedure are very complex and you will be expected to follow them. If you miss deadlines you may lose or waive important rights to make submissions or argue issues.

Do not assume you can easily represent yourself in a divorce and navigate drafting a divorce decree that properly protects you. Retaining an experienced divorce attorney is a wise and prudent investment to make sure all issues are fully evaluated and addressed and your rights are protected.  I have been a lawyer for over 33 years and practice exclusively in family law, custody, divorce and mediation. I will make sure your rights are protected.

Resolving Parenting Disputes With A Parenting Consultant

Many Family Law Lawyers and some Judges are now encouraging parties to stipulate and agree to use a Parenting Consultant to resolve parenting time disputes in divorces, post dissolution issues, parenting time scheduling issues for holidays and vacations as well as to settle joint legal custody issues such as schooling disputes, extra curricular activities, church disputes, transportation and other children’s issues. Generally Parenting Consultants are precluded from modifying actual legal and physical custody designations but their decisions can effectively make major changes that, in effect, come to close to doing so.

Generally Parenting Consultant’s are experienced family law lawyers with some additional training or experienced psychologists, counselors, or other mental health professionals. The powers of a Parenting Consultant are generally defined by contract and stipulated powers set forth in the Decree or separate Court Order. Their powers are not defined by statute or law. There have been efforts to introduce and pass laws and statutes to clarify their roles and powers, but to date a statute has not been passed. It is important to carefully review the Consultant’s Contract and any Proposed Order appointing a Parenting Consultant as you are actually, in effect, giving this individual the powers of a judge to promptly settle and order an outcome on issues presented to the Parenting Consultant concerning your children if they fall within the scope of the powers designated in the Order or contract that has been signed.

I have served as a Parenting Consultant and been involved with many Parenting Consultants in my cases. They can be very helpful, but can also create another layer of expense if the Parenting Consultant appointed is not experienced or fails to promptly make clear complete unequivocal decisions that are fair, impartial and based on the best interests of the children. They are designed to save attorney fees and court expenses by allowing an expedited resolution of parenting time issues. It allows parties to minimize attorney fees by not requiring the formal preparation of motions, affidavits and memorandums of law by your lawyer and paying the court filing fees and requiring a court hearing that may take months and instead allow parties to submit emails and letters addressing disputes involving the children that in theory can be quickly ruled upon by the Parenting Consultant.

Generally the form Orders and Contracts of Parenting Consultants provide their decisions are subject to review by promptly filing a motion with the trial court within the time period set forth in the Order. Courts and Judges love to appoint Parenting Consultants as it can in many cases cut down on the family law motions filed with court and clear the court’s calendar to address its other pressing assigned cases.

It is critical to discuss with your lawyer all ramifications of stipulating and agreeing to a Parenting Consultant before doing so. There are some Parenting Consultants who like any other profession are not the best in promptly and properly determining parenting issues. Their experience and skills vary greatly. Choose the Parenting Consultant with great care. Once appointed it can be very difficult to have one removed and it will be impossible to by-pass the Parenting Consultant unless the Consultant resigns or you obtain an Order removing the Consultant.

It is critical the Consultant lay out clear ground rules for submissions so people are not overwhelmed with lengthy last minute submissions. There are no rules or procedures in the law addressing how or the timing of submissions for Parenting Consultants. If you have a controlling or difficult ex spouse or opposing parent it can lead to more disputes and expense as it can encourage parents to raise every minor or trivial parenting issue with the Consultant as it is as easy as sending an email without the expense of scheduling and preparing a motion or affidavit for a court hearing. Sometimes parents do not as easily compromise because they can simply have  the Consultant rule on it. Sometimes Parenting Consultants fail to make clear comprehensive rulings addressing all issues as they receive numerous length emails raising many issues and counter issues and sometimes they are reluctant to reconsider or expand the scope of their decisions.

It is true that you generally have the right to appeal or seek to challenge a Parenting Consultant’s decisions in court, but many judges will give the Parenting Consultant’s decision deference although they may not be required to do so. Appealing the decision can be expensive and you have doubled the fees and expense as you have also paid the Consultant substantial fees to review and rule on the issue previously. In many cases I have observed the fees paid to a Parenting Consultant can be very substantial as it can lead to voluminous emails and multiple submissions and frequent involvement with the Consultant if a parent is controlling and difficult and has the financial means to do so.

It is important you have a family law attorney to discuss and help you through the process and decisions involving Parenting Consultants. Unless you appoint an experienced competent Parenting Consultant who carefully details the procedures and have an Order defining the scope and authority of the Consultant there can be many unexpected pitfalls and fees as well as other difficulties that you may be bound to follow that may end up being more expensive than other alternatives.

Divorce Can Have Some Positive Benefits For Children

I have seen many ugly divorces and custody battles. It is without doubt an ugly divorce where children are used as pawns or placed in the middle of conflict will cause serious emotional harm to children. It has been a pleasant change that the procedures and family law rules have now been changed to encourage amicable resolution of custody disputes without ugly litigation through Mediation or Social Early Neutral Evaluation and to minimize Temporary Hearings until amicable Alternative Dispute Resolution is attempted.

Some experts are also now confirming that divorce can have some positive benefits to children.  Jackie Middleton has stated in Canadian Living that many divorce children can experience these five benefits:

1. Divorced children often learn to be Resilient and Adaptable.

2. Divorced Children often learn to be more Self-Sufficient.

3. Divorced Children often have an increased sense of Empathy towards others.

4. Divorced Children will often not take their own marriage for granted.

5. Divorced Children often learn more about each parent based on the quality time they spend alone with each parent individually rather than in a family setting.

There is far from consensus opinion on how divorces affect children. But based on my observations and experience it is very important to keep the children out of the conflict. Children do far better when they have both parents in their lives and are not subject to a parent constantly bad-mouthing the other.

Your children will be much better off, as will you, if you find a way to settle your Parenting Disputes and avoid Custody Litigation and a Custody Trial. Sometimes this is not possible, but do your children a favor and do your best to keep them out of the conflict.

A good divorce lawyer can litigate when necessary, but also can guide you through more amicable options and procedures that can lead to an amicable settlement. It is critical to promptly retain an experienced divorce attorney at the beginning of any divorce or custody dispute.

 

 

 

Significant Other’s Can Impact Custody Decisions

In an unpublished opinion in Newman vs. Newman, A15-0561 (Minn.Ct. App. Dec.21, 2015) the court of appeals reviewed an appeal from a divorce involving a 16 year marriage involving three minor children with a mother who had been a full-time homemaker since 2003 and a father who recently retired early. The trial court granted joint legal custody, but granted the father sole physical custody.

Mother appealed and claimed the trial court erred in not granting her joint physical custody or sole physical custody.  The appellate court noted there had been acrimony and a lot of personal attacks in the case and that a current harassment restraining order precluded father from harassing the mother. It was noted this conflict did not support their ability to cooperate under a joint physical custody arrangement.

The court also found that although there was not evidence of domestic abuse, the court had deep concern about the safety of the parties’ daughters around the mother’s live in boyfriend who had been convicted of felony invasion of privacy of a minor for hiding a video camera in his 17 year-old, step-daughter’s bathroom. It was specifically ordered the mother’s parenting time not include her boyfriend and that the mother’s boyfriend directing impacted the physical and emotional safety of the children.

In addressing the best interest factors the court noted nine were neutral, one inapplicable, two favored the father and one favored the mother. The deciding factor was the interaction and interrelationship of a person who may significantly affect the children’s best interests.  In this case the mother’s decision to live with a convicted felon who had harmed his step-daughter lead to her losing physical custody.

If custody is an issue in a divorce or paternity action it is crucial to immediately consult with an experienced divorce lawyer or knowledgeable family law attorney. Decisions about living arrangements, significant others, and high conflict disputes with your spouse can preclude sharing joint physical custody or even lead to a longtime homemaker to lose physical custody.

 

 

 

Preparing For Divorce

The Divorce Process has been made more civil and informal with numerous recent rule and law changes to require or strongly encourage mediation or other alternative dispute resolution and to limit time-consuming and expensive formal discovery. Often times it still will be stressful and emotionally difficult and it still can turn into prolonged litigation if your spouse is angry or determined to go down that path.

There are some steps you can take to make the process easier, less expensive and to protect yourself. A few recommendations were recently summarized in an article published in Huffpost Divorce by Lisa Helfend Meyer on February 2, 2016 titled “6 Things to Do Before Filing for Divorce.” These are the recommendations:

1. KNOW YOUR FINANCES. Make sure you try to copy or obtain access to financial records, account statements, tax returns, financial statements and any lists of assets, debts or purchase documents for real estate. At a minimum you should try to locate the last 3 years of tax returns and if necessary contact your accountant or investment advisor or investment account representative and obtain several years of records or statements. If homes or real estate has been refinanced or recently purchased you should obtain from the mortgage broker a copy of financial statements or loan applications completed and any appraisals completed in the process. This can provide a general overview of your income, debts, and assets to assist your divorce attorney to plan a strategy for the best way to proceed. If a spouse is angry it is important to obtain these records early to avoid expense to duplicate them or in some cases avoiding a spouse from losing them or worse destroying them.

2. GET YOUR AFFAIRS IN ORDER. Take care of financial transactions before the divorce starts. If you have joint credit lines or home equity lines you may want to contact the bank or mortgage company and freeze the credit line or have your named removed from joint credit cards for future charges or contact the credit card company and advise them you do agree to be liable for future charges and ask your name be removed if you are concerned about spouse going on a spending spree and damaging your credit or charging attorney fees on a joint credit card. You cannot change life insurance beneficiaries after divorce starts and generally you are restrained from liquidating assets except for necessary living expenses or for attorney fees. You may also wish to video tape or take pictures or inventory valuable personal property such as jewelry, guns, tools or equipment or consider having items informally appraised.

3. SET MONEY ASIDE. It often times is wise to have an emergency fund set aside to hire a lawyer or if possible to pay necessary living and debt expenses for 60 to 90 days or longer because a spouse can close down accounts or close out credit quickly and leave you vulnerable until mediation or court action is taken, which now can take 60 days or longer before you can schedule a temporary hearing if mediation is unsuccessful.

4. KEEP A JOURNAL. When custody or parenting time is in dispute it is important to document your involvement with the children. It often is helpful to keep a daily journal of all your involvement with the children, their activities and schooling and all communications and conversely your spouse’s lack of involvement. You want to make sure you are active at school events and conferences as well as day care selection and pick up and drop off as well as doctor or counselor appointments. Do not allow your spouse to control or limit your involvement. Do not work voluntary overtime and minimize weekend work or travel commitments.

5. AVOID SOCIAL MEDIA. Pictures, posts and internet activity is commonly being used as evidence in custody and parenting time disputes. Things you to do through social media is often discoverable and venting about your spouse on social media will be met with restraining orders, sanctions or worse. Stay away from social media for your own protection.

6. SEE A THERAPIST. A divorce can be very stressful and situational anxiety or depression can often happen. It is important to protect your emotional health and obtain help or support through a therapist , pastor or strong family network. Family  support is helpful, but they may not always give you the best advice or be able to appropriately address the feelings or problems you are experiencing. If you feel stressed, overwhelmed or depressed it is important to seek professional help.

These are important first steps, but it remains critical to promptly seek advice from a divorce lawyer or experienced divorce attorney before you take any rash action such as moving out, changing jobs or work schedules or refinancing properties, purchasing new residences or taking out joint credit lines or loans, when divorce is on the horizon. Do not agree to temporary parenting schedules, custody or temporary financial arrangements until you consult with a knowledgeable family law attorney. Temporary agreements can limit your future options or turn into permanent binding terms that may not be in your best interests.

 

New Custody Law Factors Starting August 1, 2015

After years of debate Minnesota has substantially revised the “best interest factors” to determine Custody under Minnesota Statute 518.17, effective August 1, 2015. There have been meetings and substantial debate since 2012 on how the custody laws should be modified. An important overriding factor considered was to promote the best interests of the child by promoting the child’s healthy growth and development through safe, stable, nurturing relationships between a child and both parents. The factors now emphasize pieces that impact a child’s safety, stability and well-being and nurturing relationships. A shift now more explicitly looks at a child’s relationship with both parents.

The prior law included 13 factors and an additional 4 factors if either party requested joint physical custody. The new law now relies on 12 factors in each case.

1) How does a proposed custody arrangement impact a child’s development and a child’s physical, emotional, cultural, spiritual, and other needs? This is to focus on the child’s needs rather the parental requests as a factor.

2) A court shall consider any special medical, mental health, or educational needs of the child requiring special parenting arrangements. This is a whole new factor.

3) A court shall consider the reasonable preference of the child, if the court determines the child to be of sufficient ability, age, and maturity to express an independent, reliable preference.

4) A court shall determine whether domestic abuse has occurred in the parent’s relationship or household and the implications of the abuse for parenting and the child’s safety, or developmental needs.

5) A court shall also look at whether any  physical, mental or chemical health issue of a parent impacts a child’s safety or development.

6) A court shall consider the history and nature of each parents participation in providing care for the child. Appears to simply the prior primary caretaker factor.

7) A court is to look at the willingness of each parent to care for the child, to meet the child’s developmental, emotional, spiritual, and cultural needs and to maintain consistency and follow through with parenting time.

8) A court shall evaluate the child’s well-being and development of changes to home, school, and community.

9) A court shall evaluate the effect a proposed arrangement on realtionships between the child and each parent, siblings and other significant persons in the child’s life.

10) A court shall determine the benefit to the child in maximizing parenting time with both parents and the detriment in limiting parenting time with either parent.

11) Except when domestic abuse has occurred the court shall evaluate the disposition of both parent’s to support the child’s relationship with the other parent and to encourage and permit frequent contact with the other parent.

12) The willingness and ability of parents to cooperate in raising the child and to maximize sharing information and to minimize exposure to parental conflict as well as utilize methods to resolve disputes on major issues impacting the child.

The law changes are yet to be interpreted, but appear to make major shifts in emphasis on the child’s needs and yet to be broader in focusing on both parents.

In dealing with Custody issues it is always best to retain experienced legal counsel to be fully prepared to artfully advocate your concerns and interests. There are many decisions to made in custody disputes concerning the Process, Experts, Mediators or Litigation, which are best handled with the assistance of knowledgeable legal counsel.

Court-Ordered Grandparent Visitation Upheld in Minnesota

        The Minnesota Court of Appeals recently upheld an order awarding generous visitation to grandparents in A.B. v. Verzhbitskaya, A14-1656, (Minn. Ct. App.  June 15, 2015).  The Court held that a visitation schedule that provided the grandparents with one weekend and one weekday afternoon a month as well a weekly school visits, a nine-day summer visit, and daytime visits on both Thanksgiving and Christmas Eve was not excessive.

 

Minnesota Statute 257C.08, subd. 1 (2014) provides that, when a parent of a minor child is deceased, the court may order reasonable visitation by the deceased parent’s parents (the child’s grandparents) if the visitation is in the best interests of the child and the visitation will not interfere with the relationship between the surviving parent and the child, and the court is to consider the amount of contact with the child and his/her grandparents before the parent’s death.  The courts have held that the grandparents bear the burden of proof that their visitation will not interfere with the parent/child relationship.

 

Understanding the Case

 

In this case, the child had turned eleven shortly after the father’s death, and there was no dispute that the visitation with the grandparents was in the best interest in the child.  In fact, there was testimony that a school counselor had encouraged the grandparents to visit the child at school during lunchtime.

 

Before the father’s death, the mother had sole physical and legal custody, and the father had parenting time on alternating weekends and Wednesday overnights.  The grandparents testified that they frequently saw their grandchild during their son’s visitation time.

 

The Court’s Decision

 

The Minnesota Court of Appeals first held that the amount of visitation time was not excessive.  It noted that the amount of time was significantly less than the amount of parenting time that the father had enjoyed when he was alive and it was consistent with the amount of contact that the grandparents had with their grandchild during the father’s lifetime.

 

The appeals court also found that the grandparents had met the burden of proof that their visitation would not interfere with the mother’s relationship with her child.  Although the mother had cultural concerns that the grandparents were interfering with her decision to raise her child in the Russian Orthodox Church and had taken the child to Catholic church, the court found that the grandparents had provided credible testimony that they would accommodate the mother’s concerns and they would no longer take the child to Catholic church if they had visitation.

 

The court completely disregarded the mother’s claims that the grandparents had interfered with her legal rights to her ex-husband’s estate, stating that those financial concerns were irrelevant to the parent/child relationship.  Thus, it is important that any claims of interference by grandparents focus on the relationship between the parent and child and not on financial issues between the parent and the grandparents.

 

Also rejected was the mother’s argument that other family members be barred from assisting in dropping the child off and picking the child up.  The court found the argument was forfeited because the mother did not provide any legal authority to bar others from facilitating the transfers of the child.

 

The court did reverse the district court’s decision awarding visitation to relatives other than the grandparents, such as the child’s aunt.  The court held that the statute limits visitation to grandparents, so there was no legal basis to extend independent visitation to aunts and other family members.  The court did note that the grandparents did have the right to allow other relatives to join with them in their visitation time.
Do you have questions about a family law issue, including visitation, support or custody? Be sure to contact an experienced Minnesota family law attorney for tailored guidance and counsel.

How to Help Your Children When You Separate or Divorce

For people who are childless, divorce is relatively straightforward; once they are divorced, they never have to see each other again.  But when people have children, they are bound together for life in some ways, regardless of their marital status. They also have to worry about the third parties to the separation and divorce, their children.  It is critical to focus on what is best for the children.  In addition, if you are ever in litigation with your ex-spouse, having a record of having acted in the best interest of your children will serve you well).

HelpGuide has a great guide on helping children of any age cope with separation and divorce.  The Mayo Clinic also has a good discussion of this topic. Parents can help their children by providing stability and reassurance to the children.  Remember, that your children’s needs come first, and they need to feel loved by both their parents, and they usually want both parents to remain an important part of their life.   They also need to know that the separation or divorce was a grown-up decision that had nothing to do with them.

You may not be married anymore, but you are parenting partners for life

You need to take the long view.  If your children are young, you and your spouse, or a court, will get to decide how much time each parent has with the child.  However, once they are adults, they will get to decide how much, if any, time they spend with their parents.  If you nurture a warm loving relationship with your children, you may be invited to share their lives.

Also, no matter how bitter and unhappy you and your ex are now, you will likely come together for family events for the rest of your lives.  If your children are young, there will be school events and extracurricular events where both parents are invited.  As children get older, there will be graduations, and possibly weddings and grandchildren.  Will you be together for the children’s birthdays or will you celebrate them separately? Will you alternate Christmas and Thanksgiving?

Sad child in front of arguing parentsBecause parental conflict can be traumatic for children, it is best if you and your spouse can form a partnership, working together for the best interest of the school.  Otherwise, your children may learn to manipulate you and play one parent against the other.  You will need to bite your tongue and not say anything derogatory about your ex to your child; your relationship with your ex is your decision, but your children love both parents and need both parents in their lives (unless one parent has been abusive either to you or to the children – that’s a different situation).

If tensions are high with your ex, see if you can arrange drop-offs and pick-ups so that you do not need to see each other.  Today, you can handle arrangements with a Google calendar and communicate by texting or email, reducing the opportunities for person contact.  Do not confide problems with your ex to your children.  You will need to develop other friends that you can confide in.

Telling children about the news about the big change

You and your ex need to think carefully about how you will explain this change in your lives.  You should do the best you can to be on the same page, and anticipate what will be of most concern for your children.  They will want to know where they will live and when they will see both parents.  If they are teens, they will want to spend time with their friends as well as with their parents.   Ideally, you would both sit down together with the children and explain what will happen.

  •       Tell them the truth, but remember you don’t have to tell them everything.  Be sure you let them know that while parents can fall out of love with each other, they can never stop loving their children.
  •       Tell them you love them.
  •       Share information about the logistics of their new life. Will they stay in their current home and school?  Will then need to move?  Will their parents share custody?  When will they see each parent?  What if they want to spend time with their friends?

Help your children grieve

For many children, a separation or a divorce is traumatic, a major change in their lives imposed by their parents.  You can help by giving your children choices, and by helping them grieve.  Be sure to listen to them and encourage them to express their feelings.  And acknowledge their feelings rather than dismiss them.

Stay connected to your children

Being the noncustodial parent can be painful, but it is important to stay in touch with your children.  Technology has made it so much easier to stay in touch; even if you live far away, you can Skype regularly and call.  Sometimes its useful for even young children to have their own telephone, so parents can contact them directly.

If you need legal help with any family law matter in Minnesota, including custody issues, contact Arrigoni Law today.

Finding of Parental Alienation Leads Court to Modify Award of Custody

In Busch v. Christian, A14-0687 (Minn. Ct. App. Mar. 9, 2015), the Minnesota Court of Appeal upheld a decision of the trial court modifying a custody order to award sole legal and physical custody to a father because the mother had been alienating the child from the father.   In this case, the parents had never been married, but the father’s paternity was recognized soon after the child’s birth.  The initial child custody order had awarded both parties joint legal custody, with sole custody to the mother and parenting time to the father, increasing as the child got older.

Relying on Minnesota Statute section 518.18, the court found that four elements had to be established in order to modify a prior custody order:  (1) a change in the circumstances of the child or custodian; (2) modification would serve the child’s best interest; (3) the child’s physical or emotional health or emotional development is endangered by the current environment; and (4) the harm to the child likely to be caused by changing the environment is outweighed by the advantages of the change.   The court found that all four elements were met. books

The court found that there had been a sufficient change in the circumstances of the child or custodian to support modification of custody because the mother had constantly negatively referred to the father and refused as many as 29 days of parenting time since the last order and her actions caused the father’s relationship with his daughter to deteriorate.

The court found that modification was in the child’s best interests and provided a detailed analysis of the statutory factors.  The mother challenged the court’s conclusion on four of the factors.  First, the court found that the intimacy of the relationship of the parent and child favored the father, as he genuinely loved the child while the mother tried to alienate the child from the father.  The court was convinced that the mother had an unhealthy relationship with the child, noting that after the father had physical custody, the mother went to the child’s school every day to have lunch with her.  It was noted that the daughter was afraid to tell her mom that she loved her dad because of her mother’s constant negative state.

Second, the court found that the child’s adjustment to home, school, and community favored the father.  The court found that the child was better adjusted at school and with her peers after her father had custody.  It was again noted that the mother’s daily lunches with the child at school interfered with the child’s independence and were inappropriate.

Third, the court found that the continuity of a stable, satisfactory environment favored the father even though the child had lived for a longer period of time with the mother.  There was concerned that, since the change in custody to the father, the child was no longer sleeping in her own room but was sleeping with her mother when she had parenting time with her mother.

Fourth, the court found that the physical and mental health of the parents and child favored the father even though he had a recent DUI conviction because of the court’s concern that the mother because of the mother’s “persistent, uninterrupted and outrageous” interference with the father’s visitation.

It was also noted that the child had adjusted well to her father’s custody. And that she had improved in some significant aspects, including her hygiene.  Although she continued to have difficulties in school, the father had hired a tutor for her.

If you are involved in a custody dispute, you should consider retaining an experienced family law attorney who can assist you in developing a record that will support your claim for custody in light of the statutory factors.