Child Custody

Posts Tagged ‘Child Custody’

How does my criminal history affect custody determinations?

Monday, April 19th, 2010

When 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.

Tags: Best interest factors, Child Custody, Criminal record
Posted in Child Custody, Contested Divorce | No Comments »

Who decides what religion to raise minor children in Minnesota divorces and custody battles?

Monday, March 8th, 2010

In 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.

Tags: Child Custody, Divorce, Legal Custody, Religion
Posted in Child Custody, Contested Divorce | No Comments »

DIVORCE EDUCATION CLASSES IN MINNESOTA

Thursday, January 21st, 2010

Minnesota Statutes require all divorcing couples with children attend an educational course. Some counties, like Hennepin County require that the children of divorcing couples attend an educational course as well. The purpose of the educational courses is to address children’s feelings when their parents are divorcing or separating.

The courses are mandatory and a court may refuse to finalize a divorce until the parties have attended and provided proof of attendance of these courses.

In Hennepin County, if the parents have reached an agreement on custody and parenting time only one course is required. You may pick one of the following education courses to satisfy your requirements:

1. Hennepin County District Court Education Video This class is 1.5 hours, and it’s held at the Hennepin County Government Center. There are find out more about class dates, call 612-348-6734.
2. The Storefront Group Co-Parenting Program With your participation, you’ll receive a certificate of completion. You’ll need to file this certificate with the court. This class lasts 4.5 hours. It costs about $60 per person. For more information or to register, call Storefront/Youth Action at 612-861-1675.
3. Chrysalis’ Shared Parenting With your participation, you’ll receive a certificate of completion. You’ll need to file this certificate with the court. This class lasts 4 hours. It costs $55 per person. For more information or to register, call Chrysalis at 612-870-2479.

If you have not reached an agreement on custody and parenting time three classes are required.
1. Hennepin County District Court Education Video with Mediation There is no fee for this class. For more class locations/dates or for more information, call 612-348-6734.
2. The LEAD Program LEAD stands for “Legal and Economic Aspects of Divorce. For more information or to register, call Storefront/Youth Action at 612-861-1675.
3. The third class is either (1) The Storefront Group Co-Parenting Program For more information or to register, call Storefront/Youth Action at 612-861-1675. OR (2) Chrysalis’ Shared Parenting. For more information or to register, call Chrysalis 612-870-2479.

If you are divorcing in a county that requires your children attend education courses the following courses satisfy your requirements:
1. The Storefront Group Co-Kids Program Call 612-861-1675 for program content and registration materials.
2. Chrysalis’ Sandcastles Program Call 612-870-2479 for program content and registration materials.
Since education requirements vary from county to county, you may want to consult with one of the family law attorneys at Germscheid, Heimerl & Lammers to determine which classes will meet the requirements set forth by your particular county.

Tags: Child Custody, Divorce, Divorce education
Posted in Child Custody, Collaborative Divorce, Contested Divorce, No Fault Divorce, Uncontested Divorce | No Comments »

How Parents Can Communicate When Going Through a Divorce

Monday, November 30th, 2009

During a divorce and sometimes after the divorce is done, the parties often have a hard time communicating with each other. There are so many emotions that prevent the parties from being able to work together, which is necessary when you have children.

When parties have trouble communicating, they sometimes use the attorneys to do the communicating for them. This can greatly increase legal costs. Also, it gives the parties a false sense of security because once the case is done the parties are going to have to find a way to talk again in order to co-parent their children. One solution that is used now is Our Family Wizard.

Our Family Wizard is a tool that is sometimes used by the court in more contentious cases to streamline communications between the parties and keep them focused on the children. Each parent is given a login, and they are able to post communications to each other about events, parenting time, and other issues related to the children. If necessary, inappropriate posts may be used in the divorce proceedings and may even affect parenting time. The parties each pay a small cost to use this service, and they are able to continue using it after the court’s involvement is over.

When the parties have such a difficult time communicating, it is a good idea to do all communications in writing. Our Family Wizard is just one tool that parties may use to communicate. Programs like Our Family Wizard or even just writing emails allows the parties to think about what they are saying and remove any unnecessary emotion from their communications. They are able to edit the communication and rebuild trust more than they might if they are communicating in person or over the phone.

Communicating in writing also keeps the children out of the middle. This is one of the most important things that parents need to do, but often is forgotten about. When parents are not able to have a civil conversation with each other, there is a good chance that at least some of the time the children are going to overhear the arguments. This puts unnecessary stress on the children already in the middle of the divorce.

Tags: Child Custody, Co-parenting, Divorce
Posted in Child Custody, Contested Divorce | No Comments »

Minnesota Third Party Custody

Monday, September 28th, 2009

Third Parties, grandparents and other relatives often become the primary care-providers and role models for children in situations where the biological parents are missing or unfit due to negligence, drug use, alcoholism, abuse or financial inability to care for the child.

Minnesota Statutes § 257C.03 governs the procedure for petitioning for child custody as an interested third party or de facto custodian. Whether a Petitioner (a person requesting or petitioning the court for custody) is classified as a third party custodian or a de facto custodian depends generally on the amount of time the child has been with the Petitioner and the nature of their contacts. However, for both classes of Petitioners, the procedure is generally the same.

Who is a De Facto Custodian?

“De facto custodian” means an individual who has been the primary caretaker for a child who has, within the 24 months immediately preceding the filing of the petition, resided with the individual without a parent present and with a lack of demonstrated consistent participation by a parent for a period of:

(1) six months or more, which need not be consecutive, if the child is under three years of age; or

(2) one year or more, which need not be consecutive, if the child is three years of age or older.

Who is an interested third party?

An interested third party can be a grandparent, aunt, uncle or other family member or person who can show that the parent has abandoned, neglected, or otherwise exhibited disregard for the child’s well-being to the extent that the child will be harmed by living with the parent and that placement of the child with the individual takes priority over preserving the day-to-day parent-child relationship because of the presence of physical or emotional danger to the child, or both.

Minnesota Third-Party Custody Law requires a two-step process in which the Petitioner who satisfies certain statutory requirements would be entitled to an evidentiary hearing to prove their case. The area of third-party custody is a highly technical area of law, requiring that the pleadings be skillfully written and carefully follow the statute.

If the Petitioners fail to establish in their Petition that they are the de facto custodians of the child or that the placement of the child with the Petitioners is not in the child’s best interest, the Petition may be dismissed.

If you are caring for a child for whom you are not the biological parent, it’s important to file a motion for custody while the child is still living with you. Even though the child may be living with you, you do not have any legal right to make decisions for the child or perhaps even to seek medical care on behalf of the child until the Court specifically Orders it. If the biological parents take the child before you file the motion, custody is broken and it limits the consistent amount of care you provide to the child.

Tags: Child Custody, Child Support, Grandparent rights, Third Party Custody
Posted in Child Custody | No Comments »

Quickie Divorce From the Perspective of a Minnesota Divorce Attorney

Wednesday, September 9th, 2009

Sometimes when clients come to us to get divorced, both the client and their spouse have already determined how they want their assets and debts divided and what kind of custody arrangement they would like to use. These are sometimes referred to as “quickie divorces” because they do not take the time a typical divorce would take for negotiating between attorneys or even court appearances.

In a quickie divorce, it is still beneficial to have an attorney representing you. An attorney is able to inform you of how your arrangement may impact you in the future, in ways that are not even on your radar. As professionals in this area of law, we are able to bring to you experience with a wide variety of arrangements that work for divorcing parties, and we have the experience to share of what long-term effects certain arrangements may have on you. Using an attorney to draft and/or review your documents will give you the added assurance that things are being done properly to protect your interests. Also, it is not too costly when you take out the difficult portion of reaching agreements on all of the issues in your divorce.

Another benefit of using an attorney in a quickie divorce is that oftentimes, when people think they have an agreement on all issues, they may be missing some parts to the agreement that a court requires, and the paperwork may get stuck in the process. If this happens, it can really slow down the divorce and force you to stay married for longer than is necessary. You may have to make court appearances even though you have an agreement on everything that you thought you needed, which costs you time and forces you to miss work. An attorney will help you make sure that every issue is covered. If a problem crops up in the process of filing, as is sometimes the case, an attorney is well equipped to take care of it in a timely manner.

One common misconception about a quickie divorce is that an attorney may be hired to represent both parties in the process. Since the legal system is adversarial in nature, when a potential client chooses to hire an attorney to draft the paperwork, the attorney represents the party that retains them. That means that an attorney will be able to draft paperwork that both parties agree on, but the attorney should not be giving both parties legal advice about their individual positions. That is why it may be beneficial for both parties to hire an attorney in the limited scope of reviewing the paperwork, so that both parties may be confident in signing any paperwork. It is acceptable and common for one party to not be represented, however. That party would just have to sign a document stating that they knew they had a right to have an attorney, chose to not exercise that right, and agree to the terms of the divorce decree.

Tags: Child Custody, Divorce, Property settlement, Quickie divorce
Posted in No Fault Divorce, Property Division, Uncontested Divorce | No Comments »

Father's Rights: Establishing Paternity and Custody

Friday, August 21st, 2009

Recently we have been receiving many inquiries from potential clients regarding custody. When parents are unmarried, under Minnesota law the mother is deemed to have full legal and physical custody rights to that child. A father must go to court to establish his legal right to his child.

This does not mean that a father cannot see his child or the parties cannot come to an agreement outside of court for parenting time. What it does mean, however, is that fathers have the responsibility of paying court costs to maintain their rights. Without a court order, a mother is able to discontinue parenting time and leave the father with no other recourse.

The process for establishing custodial rights is straightforward. If the parents signed documentation in the hospital, known as the “Recognition of Parentage” form (ROP), then the father can proceed directly with establishing custody. Initial paperwork must be filed, and a hearing is scheduled as soon as possible (but at least two weeks out) where a judge will review the matter and determine what steps are appropriate. Often, the judge will recommend a form of mediation where the parties meet with a neutral third party and try to come to an agreement. Otherwise, a Guardian Ad Litem may be appointed to represent the child’s interests or a custody evaluation may be requested by the court. Custody evaluators observe both parents with the child, interview any individuals that the parents request, and make a recommendation to the court based on the evidence they gathered.

If, however, there was no ROP signed, then the father must first establish paternity. Paternity and custody may be established in the same action in court. Paternity may be established at any time before the child reaches the age of majority, and a paternity action may be brought by either parent or by the county, if there is any public assistance involved.

If you have any questions about establishing custody, or to discuss how establishing custody would affect your rights to your child, contact us to discuss your situation.

Tags: Child Custody, Father's Rights, Paternity, Recognition of Parentage
Posted in Child Custody, Paternity | No Comments »