Often in divorces, the parties are not on an equal playing field to start. When there are children involved, one party is usually the primary caretaker and is footing the bill for caring for the children without the help of the parent that may have moved out of the home. Or there may be a situation where one party was the breadwinner and supported the other spouse, and now isn’t providing the support that the spouse needs to survive. Another situation is where one party does not have the resources to pay for an attorney, which is necessary to continue in the divorce proceedings.
When situations like this arise, generally there is a hearing for temporary relief early on in the case. Temporary relief allows the parties to go to court and ask for support prior to the final resolution of the case. This allows the party in the lower financial position to be on a level playing field and not feel desperate to settle and reach a final resolution which may be detrimental to their overall position.
Another purpose of temporary relief hearings is if the parties are not able to come to an agreement on how parenting time and custody should be, but are not ready to finalize all of the details of the divorce. The judge is able to listen to both parties’ positions and make a decision that will give the children the most stability they can have while the parents are going through the remainder of the divorce process.
While temporary relief hearings are a useful tool to have in many situations, not all judges like to hear them. It may be more beneficial if the parties are able to cooperate at all to attend mediation and see if they can resolve the disputes outside of court. This gives the parties some power in shaping their future, and it is generally less contentious; with temporary relief hearings, both parties submit materials to the court that are often hurtful to the other party. The affidavits that each party write generally contain information that does not need to be said if the mediation process is used.
Archive for the ‘Child Custody’ Category
Using Temporary Relief Motions in Divorce in Minnesota
Monday, June 21st, 2010Common additional provisions added in custody agreements
Tuesday, May 18th, 2010When parties reach an agreement on custody and parenting time, there are often other provisions added into the agreement that would not otherwise be if the court decided the issue. Below are a few common provisions:
• Right of first refusal: The right of first refusal means that if the parent “on duty” is unable to care for the children for a period of time (often specified in the agreement), that the other parent has the first opportunity to say they will care for the children. This allows the off-duty parent to spend more meaningful time with the children rather than the children being cared for by a babysitter or other family members. This can get contentious if the boundaries are not set by the parents though. For example, if a time period is not specified and the child is regularly in daycare, the parents may not later agree on whether time in daycare is subject to this right or not.
• Vacation time: If the parents want to take extended vacation time with the children uninterrupted by parenting time of the other parent, they are able to agree to this. Often parents will agree to anywhere between one and three weeks during the summer or school breaks. This time can be spent just staying in town if the parent has time off of work or going away on vacation.
• Telephone/Email/Skype contact: Parents are able to set parameters for contact from the other parent during their parenting time. It is always the same for both parents, depending on what home the children are in at the time. Some parents prefer to allow unfettered access to the children, whereas others prefer to have a smaller block of time (generally a couple hours in the evening) where the parent may call. If the noncustodial parent does not live nearby, Skype allows an opportunity for the noncustodial parent and the children to have face time together.
• Extracurricular expenses: In a general divorce decided by the court, extracurricular expenses may not be addressed. However, this often is a large expense of the custodial parent that should be shared. The parents are able to agree as to how these expenses should be divided, whether it is by their percentage of income, shared completely, or if one parent will pay all expenses in exchange for something else.
• Mediation: Most parents that reach an agreement on parenting time and custody are able to work together to an extent. To that end, when problems arise in the future, there is often a provision added to the agreement that the parents will try to work out the problem before going to court. If they used mediation in the past, they most often will include that.
Calculating child support in third party custody cases
Monday, May 3rd, 2010It is becoming increasingly common for parties other than a child’s biological parents to take over caring for a child on a regular basis. The legal process to change custody is through a third party custody action. In order to file this, you must have a connection to the child (either as a de facto custodian or an interested third party). The court will determine if you have a valid claim, and if it is in the child’s best interests to be in your care rather than the biological parents.
What happens once custody is transferred? Who is financially responsible for the child?
Minnesota Statutes set out specifically how child support is calculated based on guidelines for support. Minn. Stat. § 518A.35, subd. 1(c) states as follows: “If a child is not in the custody of either parent and a support order is sought against one or both parents, the basic child support obligation shall be determined by referencing the guideline for the appropriate number of joint children, and the parent’s individual parental income for determining child support, not the combined parental incomes for determining child support of the parents.” This means that the biological parents will remain financially responsible for the minor child, either jointly or separately. The custodian has one less thing to worry about in taking over the responsibilities that come with parenting a child.
How does my criminal history affect custody determinations?
Monday, April 19th, 2010When the court makes a custody determination, the judge is to consider the thirteen “best interest” factors that are set out in Minnesota Statute 518.17. These factors are taken into account for each proposed custodian, and the court makes a final determination by weighing each of the factors. The court cannot choose to ignore certain factors.
The court is able to consider a proposed custodian’s criminal history to the extent it could affect their ability to raise a child. If a parent has a criminal history of violence, for example, even if it were before the child was born, it could weigh in the custody determination. However, if the parent has a criminal record that would not in any way affect the child, it would not influence the court’s custody determination.
One way this could play out is with prior drug or alcohol-related convictions. If a parent had an isolated incident in their past, such as an underage consumption violation, it probably will not be weighed heavily against them in determining custody. In comparison, a parent with a conviction related to abuse of an addictive controlled substance, multiple drug-related convictions, or convictions that show a pattern of relapse may have a harder time getting custody.
Each case is considered based on its own facts. The court cannot generalize about prior criminal behavior, and generally it will not unless that criminal behavior somehow directly impacted the child that is the subject of the custody battle. If you have questions about specific incidents in your past, contact the family law attorneys at Heimerl & Lammers today to see how it would impact your case.
How is child support calculated in Minnesota?
Monday, April 12th, 2010In the state of Minnesota, child support is determined based on both parents’ income and the amount of parenting time each parent is awarded. Custody labels such as “joint physical custody” or “sole physical custody” do not carry the weight that they once did. If the court is looking to determine the custodial arrangement for child support, they only look at the percentage of parenting time each party exercises or was awarded in a prior court order.
If a parent is on any form of public assistance (i.e.-food stamps or Minnesota Care insurance), the court cannot impute income to a parent. This means the court may only calculate child support based off of what the parents actually made for a gross monthly income. Otherwise, if public assistance is not involved in a case, the parties may argue that one party should have a certain income due to prior work experience or that the other party is willfully underemployed or unemployed. Most often, if one parent does not work and there is no clear income level to impute to them, the court will consider 150% of minimum wage for that party’s monthly income.
Once the parties’ income is established, the numbers are put into a child support calculator, available online. Both parents’ income is added together, giving a monthly income available for the child. each parent’s percentage of that total income is the percentage of responsibility assigned to them for child care expenses, medical insurance, and other unreimbursed costs related to the children.
While child support is calculated in a straight-forward way, it can be very confusing to parents looking to establish an amount of support or wondering if their child support obligation should be modified. If you have questions about how child support is calculated, call the family law attorneys at Heimerl & Lammers today.
How is parenting time determined in a divorce?
Tuesday, April 6th, 2010When parents have decided to get a divorce but nothing has been done in court yet, they may not agree on what parenting time schedule should be used or who should stay in the home until all is said and done. Other parties are able to agree temporarily on those issues, but do not agree on how it should be decided for a final resolution.
When parents cannot agree on a temporary parenting time schedule, the court is usually involved. Either party is able to request a hearing to set temporary parenting time. It is temporary because it is subject to change once the divorce is final, but it gives the parents a guideline to follow for what parenting time schedule to follow. This helps give stability to the children, as the parents are not going to continually fight over which day each of them will have the children at their residence.
Temporary hearings are available to address almost every issue in your divorce. While it is all subject to change, temporary arrangements do help settlement negotiations to progress. Judges are not bound by what they temporarily award for custody, but it often is a good indication of what the judge would award if the issues are brought before the court for a trial.
While they are helpful tools to have, temporary hearings are not used in every case. Many times the parties are able to agree enough to handle a temporary schedule and they are not forced to bring the issue into court early in the proceedings. They are used more often in cases where the parties are unable to communicate and agree on what is in their children’s best interests.
How does military status affect my divorce?
Monday, March 29th, 2010If either party to a marriage or other family law matter is an active service member, there are protections in place that may prohibit the action from going forward without them. This protection is under the Servicemembers’ Civil Relief Act of 2003 (formerly known as Soldiers’ and Sailors’ Civil Relief Act of 1940) . The purpose of this is to allow individuals to serve our country without the worry of legal actions occurring where they are unable to participate. Included in this are all civil actions, including divorce, paternity and child custody. Not included are hearings to determine child support.
If a servicemember comes home from active duty and finds that a judgment was entered in court without their consent or knowledge, the service member may be able to have the judgment voided. If the service member finds out that some legal action has started, they are able to request a stay, forcing the court action to be postponed.
This act can protect servicemembers from having to make important decisions when they are not fully able to devote attention to the matter. Both parties’ military status is required to be disclosed at the start of any legal proceedings, so the court will be on notice from the start if there are special issues in your case. For more information on this act, visit the Department of Defense’s website.
How are custody matters determined in same-sex families in Minnesota?
Monday, March 22nd, 2010Minnesota does not recognize same-sex marriage. Of course there are still families of same-sex couples, and custody matters need to be decided. How do the courts in Minnesota determine these issues?
A couple is able to establish custody and visitation rights at any time, even if they are still in a relationship together. That can be helpful to set parameters and make sure both parties have rights in case something goes wrong in the relationship. However, if the parties are residing together, issues of parenting time and who is the custodial parent may not be determined.
Another solution is for the party who may not be the biological parent of the child to adopt. What happens if the parties do not plan ahead when they are involved in the relationship and do not have any parental rights to enforce in court?
An individual may be able to bring a request for custody and/or parenting time under Minnesota Statutes establishing third party custody. There are requirements for how long you were involved in the child’s life and what role you had in raising the child. If you meet the standards, you may still be able to get parenting time or custodial rights even though you are not recognized as the child’s parent under the law.
There are very technical requirements to be able to bring a third party custody matter. If you are interested in pursuing a third party custody case or have questions as to whether you may fit the statutory requirements, contact a family law attorney at Heimerl & Lammers today.
Who decides what religion to raise minor children in Minnesota divorces and custody battles?
Monday, March 8th, 2010In the news recently, there has been coverage of a case in Chicago where the parents disputed what religion to raise the child and the father faced contempt of court for exposing the child to his religion. While standards may be different in Illinois, it does raise the question, who decides what religion minor children will be exposed to?
In the state of Minnesota, religion is considered an issue dealt with through legal custody. If the parents can agree on the bigger issues in a child’s life, such as religion or where the child will attend school, the court will often grant joint legal custody and allow the parents to make those decisions together. However, if there has been domestic abuse or there is a clear indication that the parents are unable to communicate and work out disagreements over legal custody matters, the court may grant sole legal custody to one parent over the other.
If one parent has sole legal custody and the other parent violates it by exposing the child to another religion, the parent with legal custody may file a motion asking the court to hold the offending party in contempt of court. This basis for this is that the offending party violated a court order and is not following the terms that the court set out. The offending party is given the opportunity to admit or deny that they violated the order, and if the court finds they did violate it then purge conditions must be set to rectify the situation. The party would not go directly to jail; jail is not meant to be a punishment, but rather a tool to gain compliance of that party.
If you do not have legal custody but would like the court to consider allowing you to address your religious beliefs or other matters, you are able to file a motion with the court. The court may look at the issue and if the judge finds it is in your child’s best interests, they may order something other than what the parent with sole legal custody would like.
If you have questions about legal custody and your rights, call the attorneys at Heimerl & Lammers for a free initial consultation today.
Child support: how is it calculated in Minnesota?
Monday, February 22nd, 2010In the state of Minnesota, the way child support is calculated underwent a major change in 2007. Child support is now calculated by a strict formula, taking into account each parent’s gross monthly income and the amount of parenting time that is exercised by the non-custodial parent. The parenting time is divided into three ranges, and an adjustment is applied to the base child support award based on the parenting time the parent has been awarded by a court: 0-10%, 10-45%, and 45-50%.
The court has made the child support calculator available online on the Minnesota Department of Human Services website. If you have questions about the amount of child support you may be awarded, it is a good idea to start there and experiment with income figures.
If a parent is under- or un-employed, the court may impute income to them. Income may be imputed to an amount that they are capable of earning, have earned in the past, or a default amount of 150% of minimum wage (approximately $1,702.00 per month). If after child support has been awarded there are changes in a parent’s income, the court may modify the child support award. This is done through a motion filed by the party requesting the change. The court will look at the request, see if it qualifies as a change in circumstances defined in Minnesota Statute § 518A.39, and determine if a modification would be appropriate.
If you have questions about child support in general, or more specific questions about your case, call the family law attorneys at Heimerl & Lammers today.