Interstate and International Custody Disputes and Minnesota Law

Posted by Amanda Maenner on September 01, 2010

In many divorce and custody cases involving children, the parties both stay in the state of Minnesota and the courts within the state will continue to make all determinations regarding custody and parenting time for the children.  However, there are situations where the parties both move out of state or even out of the country and custody determinations must be made.  What happens then?

Minnesota, along with most other states in the US, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  The UCCJEA determines which state will have the ability to make a custody or parenting time determination where more than one state is involved to start, and also it determines who will continue to have control over custody and parenting time determinations for the child’s minority.

The UCCJEA also extends to international custody matters, though these are much more difficult to enforce.  Foreign countries have not adopted the UCCJEA and are under little or no obligation to follow it.  If the foreign country determines under its law that the child custody matters may be determined in its jurisdiction, it may assert jurisdiction and take over the decisions.  This would be likely in a case where the child has moved with a parent, with the consent of the other parent or the court, to a foreign country and has been residing there.

Interstate and international custody matters are very complex and are not something that most individuals are able to handle without an attorney.  It involves state, international and foreign law, and often will involve attorneys from both countries to navigate through the system.

Motions for Reconsideration

Posted by Amanda Maenner on August 24, 2010

Almost always when parties go to court and the judge makes his or her decision, someone will not be happy with the results.   That is why it is preferred by the court that parties resolve their disputes without needing its involvement.  What can be done if you are the party that is not happy?

In motions made in family court, if a party does not like the results of an order, they are able to request via letter a Motion for Reconsideration (Rule 115.11 of the General Rules of Practice).  The letter must not exceed 2 pages in length and must describe compelling circumstances that exist as to why the order was wrong.  If the court agrees with the reasoning set out in the letter, they may either just issue an amended order or allow the party that wrote the letter to bring a motion to reconsider the previous order and be heard by the court.

Motions for reconsideration are not often successful.  The judge is deliberate in the decisions that are issued, and you are not able to bring new information that you previously had to the court through your motion to reconsider.  The high standard of needing compelling circumstances provides some validity to orders that are issued by the court.  Parties are able to rely on an order being enforceable and can have some finality to the issue that was brought before the court.  If there is new information that has been found since the parties appeared in court, it may be appropriate to bring an entirely new motion on the subject.

Divorce Rates In Minnesota Reported To Be On The Rise Again

Posted by Amanda Maenner on August 17, 2010

A recent article published in the Star Tribune comments on the increase in divorce rates in the state of Minnesota, where over the past few years the rates have been declining.

Compared with the same period in 2009, Judge Tanja Manrique of Hennepin County Family Court noted an 8 percent rise in divorce case filings involving children and a 5 percent increase in filings not involving children.

"These are statistically significant numbers for us," she said. "Last year, dissolution filings for most months were flat. As the economy starts to rebound, people come to the conclusion they need to go on with their separate lives."

In the past couple years, we have seen the trend also of parties staying together not because they think they can work out their marital problems, but rather because financially it did not make sense for them to create two separate households or divide the equity in their home when it was underwater.  The increase in divorces does seem to be related to the economic conditions right now.  Granted, not all markets have improved and the parties may be taking a loss on their home.  But it has gotten to a place where people seem to be more secure in their jobs and ready to move on with their lives.

Facebook's Role in Family Court Proceedings

Posted by Amanda Maenner on August 09, 2010

A case recently made national headlines where a wife from Ohio allegedly found out her husband had married another woman in Florida by seeing the pictures on the other woman’s Facebook page.  This case is now going through heavy litigation regarding interstate custody matters, jurisdiction, and determinations of whether the marriage is valid or not.  The headline for this case, of course, is focused on how the woman discovered this information over the social networking site, Facebook. 

Facebook is used often in family court.  It is not very often that you are able to discover your spouse leading a secret life or find other wedding pictures.  More likely, it is used to discredit the character or credibility of the other party.  An article recently written by Veronica Gonzalez in South Carolina describes the practices of attorneys in that area, which are the same as in Minnesota.

One of the most common ways that Facebook is used in divorce and custody proceedings is as evidence of the parent’s lifestyle and behavior.  If chemical dependency is an issue in the case, it is not uncommon to be able to find pictures of a parent drinking or partying, or find incriminating comments either they posted or someone else posted on their page.

If you are going through a divorce or custody matter, it is best to either not use the social networking sites at all or to limit both your privacy settings and your friends list.  This will help protect you from anything being used against you in court, as the court will give weight to evidence pulled from social networking sites.

How Do I Get a Fair Settlement in a Minnesota Divorce If I Do Not Know What My Spouse Has?

Posted by Amanda Maenner on August 02, 2010

In every divorce case, the issue of a property settlement must be addressed.  Every marriage results in either assets to be divided, debts to be divided, or both.  Sometimes, only one spouse has been responsible for paying bills and making purchasing decisions.  The other spouse may have no idea how much money (or debt) the parties actually have and where it is located.  How do you deal with that in a divorce?

In the divorce proceedings, there is a process called “discovery”.  In discovery, you are able to request information from the other party and they are able to do the same of you.  The information is not really restricted; as long as it relates in some way to your marriage, assets or debts, the other party is required to answer.  This process is done under oath, so if later you find out something was not properly disclosed, the party that did not disclose it may get into trouble from the court.

Discovery in divorce cases is the same as it is in any general civil action.  There are rules regarding what kind of discovery can be done, such as written questions or taking testimony under oath, and some of those discovery methods have limitations on them.  For example, you can do what are called Interrogatories, where you ask for specific information from the other party.  The Interrogatories are limited to only 50, though the court generally will not enforce that limit as long as you are asking for relevant information. 

If, after discovery is over you still do not feel that you have enough information, you may want to hire an expert to review the documents and try to track any missing assets.  This will help you to ensure that you have a complete picture of the financial situation before making any decisions on settling your case.

How Are Expenses of the Children Divided in Child Support Awards?

Posted by Amanda Maenner on July 26, 2010

When parents are separated, there will almost always be a child support obligation from one parent to the other to support the children financially.  Basic child support is determined based off of a calculation, taking into account both parents’ gross monthly incomes and the amount of time each parent spends with the children.  More information on how to determine basic child support is available on the Minnesota Department of Human Services' website.  But how are other costs, such as daycare or medical expenses, divided between the parents?

In general, basic child support is not negotiable, though this can vary depending on your situation.  However, extra expenses may be divided in any way that the parties agree.  If one party earns significantly more money than the other, that parent may assume the costs of all extra expenses.  More commonly, the expenses are shared equally by the parents.  However, the most common way the expenses are divided is based on the Parental Income for Determining Child Support, known as “PICS”. 

PICS is determined by looking at the total amount of income available for support of a child per month and figuring out what percentage each parent contributes to that amount.  For example, if Parent A earns $1000 per month and Parent B earns $2,000 per month, then the total amount available to support the children is $3,000; Parent A earns 33% of that, and Parent B earns 67%.  Generally, Parent A would be responsible for 33% of all monthly medical insurance premiums, any unreimbursed medical expenses, and daycare expenses for the children, and Parent B would be responsible for 67% of those expenses. 

If the parties agree to share in additional expenses for the children such as costs for extracurricular activities or private school tuition, those costs are generally divided in the same way that the parties agreed to.

New Study: Is Divorce Contagious?

Posted by Amanda Maenner on July 19, 2010

ABC News aired an interview with James Fowler, the author of a study concluding that divorce is contagious.  In the interview, Fowler states:

"We followed thousands of people over 30 years.  We found that if your friend gets divorced, it increases the likelihood that you'll get divorced by about 147 percent."

Fowler’s study did not look at the individual cases to see what caused the divorce, but generalizes that it may be the influence of friends that make divorce more acceptable as an option.

Susan Pease Gadoua, LCSW, wrote an article for Psychology Today commenting on this study and on how other factors contribute to what is described as “divorce clustering.”  Her article stresses how seriously people consider divorce before taking any steps toward it and feels that to conclude divorce is contagious is insulting.

 In our practice, each couple getting divorced has their own underlying reason(s) for it and it is not something that was decided overnight.  While friends may influence the acceptability of getting a divorce rather than trying to stay in a marriage, they do not generally seem to create the underlying issues or push a marriage toward divorce.

Divorce Proceedings in Minnesota with Out-of-State Parties

Posted by Amanda Maenner on July 15, 2010

We receive calls often from out of state parties who have been served with divorce papers from Minnesota or who would like to divorce someone in the state of Minnesota but do not know what to do.  There are many elements that determine which state you should file your case in.

First, if you have children, there is federal law that was adopted by almost every state that controls which state is proper.  The Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA, defines the proper state as the state where the children have resided for the previous six months.  If you just left the state of Minnesota and would like to file in your new state, you must first find out if that state adopted the UCCJEA.  Minnesota has adopted it and it is now a part of the state's statutes.  At that point, you can make the decision whether to wait to file for divorce until the proper time has run or if you would like to file in Minnesota.

Another consideration in choosing which state to file for divorce is whether you own a home or not.  If you own any real property, the state where the property is located is the only state that can make decisions regarding the disposition of the property.  This means that if you live in Iowa but own a home in Minnesota and you and your spouse do not agree regarding what to do with the house, a court in Minnesota must make that decision.  The Iowa court will not make the decision for you.

Other factors play a role in where it is proper to file for divorce, including the length of time you have lived in a certain state.  In the state of Minnesota, one of the parties must reside here for 180 days before filing. 

If you have questions about jurisdiction, it is best to speak with an attorney to make sure that you make the best decision based on your situation.

How Do I Establish My Parental Rights in Minnesota?

Posted by Amanda Maenner on July 08, 2010

Many of our clients are unmarried parents.  With marriage comes automatic parental rights.  When you are not married, the father must go to court to establish his rights before he is able to enforce them.

Custody cases for unmarried parents start in one of two ways.  If the parents never did anything to show that he is the biological father, the case must start with a paternity action.  This can be initiated by either the mother or the father.  Once paternity has been established either through agreement of the parties or genetic testing, then custody may be established by the court.

If the father signed a Recognition of Parentage (ROP) at the time the child was born or shortly thereafter, which is filed with the Minnesota Department of Health, he is able to skip ahead to establishing his custodial rights in the court.  

Often, neither party will bring the custody action to court until child support is requested.  This may be because the parties were still romantically involved and sharing in parenting responsibilities, or that they were able to work out a schedule on their own that worked for both of them.  Other times, the parties will have a falling out that prompts one parent to withhold the child and the other is forced to go to court to establish some legal rights.

Under Minnesota law, in a situation with unmarried parents, the mother is presumed to have sole legal and sole physical custody until the court determines otherwise.  That is why it is important for parties to have some agreement in writing and file it with the court.  Without the court’s protection, a mother is able to make all decisions on behalf of the child and the father legally has no say in it.