Child Custody / Parenting Plans
Katz, Manka, Teplinsky, Graves & Sobol, Ltd.Divorce with Dignity ◦ Defending Rights for Family Law Clients for 40 YearsCustody - Parenting Time One of the most heart-wrenching aspects of any divorce involves the decisions that must be made as to how children will be cared for when their parents begin living separate lives in separate homes. Mothers, many of whom may have assumed during the marriage that they would be able to stay at home and care for their children during their school years, face the prospect of having to return to the job market part time or full time. Fathers, many of whom were actively involved in their children's care, fear that they will lose their relationship with their children upon moving out of the homestead and starting a separate life. In a perfect world, you and your spouse will have sufficient strength and love for your children to know how to craft a parenting plan that is in their best interest. Regrettably, however, many times, the emotions you are experiencing at the time, and the differences you are experiencing with your spouse, make this type of decision and compromise difficult if not impossible to make on your own. In the past, spouses have become stuck on the labels attached to decisions involving the children - sole custody, physical custody and visitation sometimes sound as if children are property to be awarded to one party over the other. The family law system has developed a process to assist the court in making these difficult decisions if the parties are unable to reach their own agreements. Especially over the past decade, strides have been made to change the labels previously associated with decisions involving the care of children. While the labels of custody still may be used, sole physical custody has now become "primary physical custody," and it is appropriate and even encouraged today that the parties agree or that courts establish parenting plans affording each party access with the children, without assigning specific labels to the parenting time arrangement. Two types of custody - Legal and Physical Relative to determinations as to child custody, in Minnesota there are two types of custody, "legal" and "physical" custody. "Legal custody" means the right to determine the child's upbringing, including education, health care and religious training. "Joint" legal custody means both parents have equal rights and responsibilities to participate in making major decisions affecting the child's upbringing, including education, health care, and religious training. "Physical custody and residence" means the routine daily care and control and the residence of the child - in other words where the child is living and who is making daily decisions as to the child's routine care. "Primary" physical custody means the parent who provides the primary residence for a child and is responsible for a majority of the day-to day decisions concerning the child. "Joint" physical custody means the routine daily care and control of the child and residence is structured between the parents. Parenting plans Hopefully, you and your spouse will be able yourselves, with the assistance of your attorneys, to craft a parenting plan in the best interests of your children. The attorneys at Katz, Manka, Teplinsky, Graves & Sobol, Ltd., have the knowledge, expertise and background, some with degrees in child psychology, others with backgrounds in psychology and parenting, to assist you in crafting an appropriate parenting plan for your children. We excel in finding creative ways to construct either simple or detailed plans. Your plan will define what role each parent will have in making legal custodial decisions as to your children's education, health care and religious upbringing. Your plan will set forth your children's residential schedule, and who is responsible and when for making the day-to-day decisions involving the care of your children. Your plan will also set forth a schedule for dividing holiday and vacation time with your children. We are aware of what schedules are appropriate for your children, depending on their ages and each parent's past involvement in their care. We are aware that as children grow, their needs may change which may require an adjustment to the time they spend with each parent. We are also sensitive to those cases where it may be appropriate to retain an expert to assist you in future disputes over parenting time and the care of your children. We have developed over years of practice creative and detailed language which we will include in your parenting plan, designed to anticipate the multitudes of potential issues which may arise in the future relative to co-parenting your children, including possible disputes over holidays, birthdays, school events, extracurricular activities, vacations, illness, and drop offs and pickup times and locations. The aim of this language and planning is to head off future disputes before they happen, so that your children can grow and thrive free from the strife which occurs when parents have such disputes. How the court decides custody if you and your spouse cannot agree as to the future care of your children If you and your spouse cannot decide on an appropriate parenting plan, ultimately, your children's future will be determined in part by a stranger - a judge or referee making the decision of where your children will live and how much time the children will spend with their mother and how much time with their father. Under Minnesota Law, this decision must be made in the "best interests" of the minor children. In making this decision, the court must make detailed written findings considering thirteen best interest factors as set forth in Minnesota Statutes at chapter 518.17 and explain how the factors led to its conclusions and determination of the best interests of the child. In considering these factors, the court may not use one factor to the exclusion of the others. While under older Minnesota Law, primary caretaker was the controlling factor, today the primary caretaker may not be used as the only presumption in determining best interests. In addition to the thirteen best interest factors, when either party seeks either joint legal or joint physical custody, the court must consider four other factors. There is a rebuttable presumption that if sought, joint legal custody is in the children's best interest. This means that typically unless the parties cannot cooperate or communicate, both parties will be awarded joint legal custody. While historically joint physical custody has not been favored by Minnesota courts, over the past decade, more and more courts are willing to consider a more expanded parenting time schedule, allowing both parents, where appropriate, significant time with their children. This is based upon a growing library of developmental psychology research suggesting that in many cases, the more contact children have with both parents, the better adjusted they will be as they grow up. Custody/parenting time evaluations To assist the court in making findings as to the best interests and joint custody factors, typically the court will appoint a neutral third party to conduct a "custody or parenting time evaluation." Some counties have their own department of court services who perform these evaluations; some contract this work out to third parties. In addition, the parties always have the option, if they can afford the cost, of hiring an independent evaluator, typically a child psychologist, to conduct the evaluation. Custody/parenting time evaluations sometimes take four to six months to complete. The evaluator as part of the process will meet with the parties, may meet with the children, depending on their ages, and will observe each party separately interacting with the children. Sometimes this observation will take place in a playroom at the evaluator's office and sometimes this observation will take place at the party's homes. If mental health issues are alleged, many evaluators will administer psychological testing to the parties, and occasionally to the children as well. The evaluator may also seek information or speak with such other third parties as is appropriate or requested by the parties, including friends, relatives, neighbors, co-workers, daycare providers, teachers, counselors and health care providers. At the end of the evaluation, many evaluators will first meet with the parties and orally present their recommendations. If the parties are unable to agree to those recommendations, a written report will be issued, with a discussion covering each best interests factor and if needed, each joint custody factor. Parenting time expeditors/parenting consultants To assist parents in resolving disputes as to parenting time, and in making decisions involving the care and upbringing of their children, both during the proceedings and thereafter, there are several types of professionals available to assist you and your children. One type is specifically legislated under Minnesota law - parenting time expeditors. The other type, parenting consultants, are a creation of the family law bar and the psychologists who assist us in making decisions involving minor children. Minnesota Statutes at chapter 518.1751 defines and sets out the authority of "parenting time expeditors." The purpose of a parenting time expeditor is to resolve parenting time disputes by enforcing, interpreting, clarifying and addressing circumstances not specifically addressed by an existing parenting time order, and, if appropriate, to make a determination as to whether the existing parenting time order has been violated. A parenting time expeditor may be appointed to resolve a onetime dispute or to provide ongoing services. "Parenting time dispute" means a disagreement among the parents about parenting time with a child, including a dispute about an anticipated denial of future scheduled parenting time. It may involve a claim that a parent is not spending time with a child as well as a claim that a parent is denying or interfering with parenting time. A "parenting consultant" is similar to a parenting time expeditor, but whereas an expeditor is limited by statute to resolving parenting time disputes, a parenting consultant's duties are defined by the parties and included in a parenting consultant agreement and order, and may be much broader than that of a parenting time expeditor. The parties may grant the consultant authority to determine disputed custody issues, to recommend therapy for a child or a party and even the authority, if necessary, to recommend a change in the parenting time plan. With either a parenting time expeditor or parenting consultant, the language of the order appointing this professional will provide that when a dispute arises, the professional will either meet or speak with the parties about the dispute within five days, and will initially attempt to mediate an agreement between the parents. If an agreement cannot be reached, the expeditor or consultant will be required to make an immediate decision, in writing, summarizing his/her decision. That decision is then binding on the parents, unless either parent requests the court reach a different decision. Guardian ad litems In all proceedings for child custody or for marriage dissolution or legal separation where custody or parenting time is at issue, the court may appoint a guardian ad litem to represent the interests of the children. A guardian may be appointed during the proceeding before a final custody/parenting time decision is made, or the guardian may be appointed at the conclusion of the litigation or as part of later post decree litigation. A guardian is not an attorney for the child, but rather a voice or representative for the best interests of the child, and many guardians are not attorneys. A guardian must be appointed in a case where it is alleged that a parent has harmed a child, or the child is at risk of being harmed. Typically, if a guardian is appointed while a custody evaluation is being conducted, the guardian may also issue a written report addressing the best interest factors and making his/her own recommendation as to custody and parenting time. Modification of custody/parenting time Children grow and circumstances change sometimes requiring changes in the parenting time schedule and sometimes in the child's primary residence. Minnesota statutes at chapter 518.18 specifically provides for the process for presenting requests for changes to the court and when a court may and may not make a change. While it is not atypical to request changes to parenting time as a child grows older, the law is stricter when it comes to requests to actually change physical custody. Such motions cannot be made within the first year after the initial establishment of an order or parenting plan. Thereafter, motions usually cannot be made within two years of the last request for modification. As to requests to change physical custody, unless both parties agree to the change, or the child has moved into the other parent's home with the other parents consent, the court may not modify physical custody absent evidence that the child is endangered in his/her current home unless the parties agreed in an earlier order that the court would decide physical custody anew, considering best interests of the children. Modification of physical custody arises from time to time when one parent needs to move to another state. If a parent with physical custody desires to move, he/she may not move the children's residence unless the other parent agrees or the court approves the move. If such requests are contested, the court must determine the children's best interests, applying at least eight factors, including the nature, quality, extent of involvement and duration of the children's relationship with the parent proposing to relocate, the other parent, and the children's siblings and other significant persons in the child's lives; the age and needs of the children; the feasibility of preserving the relationship with the non-relocating spouse; the children's preference; whether the relocating parent has supported or thwarted in the past the other parent's relationship with the children; whether the move will enhance the child's life; the reasons for and against the requested move; and whether the move is related to domestic abuse. The person seeking the move has the burden of proving the move is in the children's best interest, unless the move is because of domestic abuse, in which case the non-relocating party must prove the move is not in the children's best interest. Katz, Manka, Teplinsky, Graves & Sobol, Ltd. can protect your rights and the best interests of your children Among our child custody lawyers are attorneys with academic backgrounds and practical knowledge of child psychology, domestic abuse, and related fields. We work with specialists as needed to protect our clients' parent-child relationships when physical and legal custody are at stake. We will help you make decisions along the way as how to best preserve your relationship with your children and how best to look after and protect their best interests. We will advise you relative to whether you should rely on a court services evaluator or retain a private evaluator; whether you should request the appointment of a parenting time expeditor or consultant; whether you should you request the appointment of a guardian ad litem; and what information you should present to those professionals during the proceedings. We can also assist when future disputes arise under your parenting plan, or when changes to that plan are needed to protect the best interests of your children. To schedule a consultation on the legal and practical aspects of child custody in conjunction with divorce or parental separation, contact an experienced Minnesota child custody lawyer at the Minneapolis-St Paul law offices of Katz, Manka, Teplinsky, Graves & Sobol, Ltd. |
