Minnesota Domestic Orders of Protection

Minnesota Domestic Orders of Protection

Under Minnesota law, Minnesota Statute Section 518B.01(7), the court may grant an ex parte order of protection, which means that the opposing party is not present in court when the court issues the order, if the application for the order of protection alleges an immediate and present danger of domestic abuse.   The Minnesota Court of Appeals requires sufficient evidence of immediate and present danger of domestic abuse by the respondent, the person against whom the order of protection is sought. Evidence of abuse by another person in the household is insufficient, and evidence of neglect is also insufficient.

In Hudson v. Hudson, No. A13-0283, (Minn. Ct. App. Aug. 26, 2013), the court held that it is insufficient to establish domestic abuse just by showing that domestic abuse occurred within a family or household; the court must find that the respondent committed domestic abuse. Thus, the district court’s finding that a mother allowed her boyfriend to be around her child was insufficient to prove domestic abuse. even though the child suffered a physical injury, namely a black eye. Nonetheless, the court found that there was only a history of allegations of domestic abuse, not a history of domestic abuse, just allowing her child to be around her boyfriend was not sufficient evidence of abuse by the mother.

In Chosa v. Tagliente, 693 N.W.2d 487 (Minn. Ct. of App. 2005), the Minnesota Court of Appeals held that the trial court’s finding of domestic abuse was clearly erroneous because there was insufficient evidence to support the issuance of an ex parte order of protection. The court found that there was no evidence that the mother had a present intent to inflict fear of imminent bodily harm. The court held that past abusive behavior is not dispositive although it may be a relevant factor in determining whether there is sufficient evidence for an order of protection. In this case, the evidence of the mother’s past abuse included: (a) leaving her one month old baby in a baby carrier in the checkout aisle unattended for a period of time; (b) washing her child’s bottom with a stream of water; (c) leaving her child in the house without notifying the child’s father that she was leaving; (d) failing to make sure the child had regular medical checkups; (e) breastfeeding her child after drinking alcohol or using marijuana; and (f) leaving the child in her baby carriage without supervision when she was drunk.

The court noted that there was no evidence that any of these incidents led to any actual physical harm, bodily injury, or assault. The court said that the only one of these incidents that could have constituted harm was washing the child’s bottom under a full stream of washer if the water had been hot, but, because there was no allegation that the water was hot, cleaning the child’s bottom in such a manner was not abuse.

The court held that the allegations, which amounted to inappropriate hygiene and inadequate medical care, leaving the child unattended, active chemical dependency while parenting the child, and even “an overall pattern of behavior endangering the physical wellbeing of the child,” might constitute evidence of neglect, but not evidence of domestic abuse.

Because an order of protection can have many implications, any individual who is the subject of an order of protection should consult an experienced family law attorney.

Modifying Spousal Maintenance and Child Support

In Engelhart v. Engelhart, #A12-1705 (Minn. Ct. App. June 3, 2013), the Minnesota Court of Appeals made clear that a party seeking a change in spousal maintenance or child support due to a substantial change in circumstances under 518A.39, 2012 Minnesota Statutes cannot rely on facts known to the parties at the time of the judgment. In this case, the parties had agreed to $4700 a month in spousal maintenance, knowing that two of the three minor children would become adults within two years. Thus the court held that the fact that the children would become adults was a change that the parties should have anticipated, so it could not be a factor in reducing permanent maintenance, given that the agreement did not indicate that the permanent maintenance was calculated based on the number of minor children in the household.

The court also held that there must be a substantial increase or decrease in the gross income or financial need of either ex-spouse to warrant a change in circumstances that would reduce the spousal maintenance. In this case, the court found the ex-husband’s reduction in income, from $11,000 to $ 10,333, a total of $667 or 6%, was not a sufficient decrease to warrant a reduction in child support. .

The court also rejected the ex-husband’s argument that his ex-wife was underemployed. The wife had earned $2,043 monthly as a school teacher at the time of the divorce, but was only earning $1,262, a decrease of $781, at the time of the motion. She had begun working as a substitute teacher. The court noted that his ex-wife had applied for positions, presumable full-time teaching positions, that she was qualified for, but she did not receive any offers of higher paying jobs. The ex-wife thus was able to prevail on this point because she had a record of seeking employment for a higher wage even though she was unsuccessful.

The court also held that the district court did not abuse its discretion by denying the motion for child support. The parties shared legal and physical custody of their minor child and shared parenting time equally. The original judgment reserved child support, and had provided the each party would be responsible for the children for the time that they were in their custody. The court held that, because the motion was to modify child support rather than to establish child support, the court was not required to make specific findings applicable to calculating child support.

Finally, the court also upheld the district court’s order granting the ex-wife’s motion to require the ex-husband to pay one-half of their child’s private school tuition. Although the expense was not party of the parties’ standard of living during the marriage, as the children went to public school at that time, the court found that the expense was reasonable. The court noted that the child had “struggled academically” at the public school and was now successful at the private school.

Significantly, the ex-wife only moved to obtain payment for the private school tuition after her ex-husband moved for downward modification of the spousal maintenance and for an order of child support. Thus, in making a motion to change spousal maintenance and child support, a party should consider possible counter-moves by the ex-spouse.

If you think that there have been any substantial changes in income or expenses that would warrant a change in spousal maintenance or child support, you should consult an experienced divorce attorney.

Recognition of Parentage and Petitions for Visitation for Grandparents and Other Third Parents

Minnesota law, Minnesota Statute Section 257C.08, provides that grandparents, great-grandparents, and other third parties can petition for visitation rights to see unmarried minor children under certain specific circumstances, including when a parent has died and when a child has resided with the grandparents or great-grandparents for twelve months or more. In addition, the statute provides that the court can grant reasonable visitation rights to grandparents if family court proceedings regarding dissolution, custody, or parentage have been brought, either during the proceedings or after the proceedings have been completed.

In Christianson v. Henke, 11-1319 (Minn. Ct. App. Mar. 19, 2012), the Minnesota Court of Appeals held that a proceeding for parentage includes the filing of recognition of parentage pursuant to Minnesota Statute Section 257.75. Under that statute, when a child is born to a mother was not married to any man at the time the child was conceived or when the child was born, the mother and father of the child can both sign a writing before a notary public acknowledging that “they are the biological parents of the child and wish to be recognized as the biological parents” of the child. The parents must file the writing with the state registrar of vital statistics. The recognition of paternity may be revoked in writing signed by the same parties as the initial recognition filing within the earlier of (a) sixty days of the date that the recognition was executed or (b) the date of an administrative or judicial hearing regarding the child.

A husband at the time of conception or birth is presumed to be the father of the child. However, the statute does provide that a husband can join in a recognition of parentage filing and recognize that he is not the biological father of the child and, instead, another man is the biological father of his wife’s child.

In Christiansen, the court held that the recognition of parentage executed under 257.75 constituted “a proceeding for parentage for purposes of petitioning for grandparent visitation rights” and, therefore, gave the district court subject-matter jurisdiction over the grandparent’s petition for visitation rights. The district court had given the paternal grandmother visitation rights with the grandchild. In that case, the parents had executed the recognition of parentage form on the day the child was born. The paternal grandmother lived next door to the mother and father of the child and spent a significant amount of time with the grandchild until an incident which led the parents to prohibit the paternal grandmother and her husband from having contact with the child.

The child’s parents argued that the recognition of parentage filing did not involve litigation and, therefore, was not a proceeding. The Court of Appeals rejected that argument, holding that the recognition of parentage filing established a legal procedure for establishing parenthood. The recognition of parentage filing has the same force and effect as any judgment determining parentage.

In Christianson, the court also held that a step-grandparent of a child could not bring a petition for visitation, as only biological or adoptive grandparents may petition forr visitation.