Initial Custody Order

If parents have not reached their own agreement on custody and parenting time, the court needs to make the decision. When making an initial child custody decision, the courts will use a variety of factors known as ‘the best interests of the child‘ to weigh the options and make a decision. Once an initial custody order is made, it will remain in place unless modified by a future order.

Timing Limitations

After the initial custody order is entered a motion to modify custody can not be made for a period of one year. There are three exceptions to this: 1) there was an agreement in writing between the parties otherwise allowing the motion; 2) the court finds there has been persistent and willful denial of or interference with parenting time; or 3) the court finds the child’s current environment may endanger the child’s physical or emotional health. After the court hears a motion to modify custody (whether or not the request is granted), another motion to change custody can not be made for a period of two years, unless one of those three exceptions exist.

Additional Requirements for Modifying Custody

For a court to modify or change a custody order, the parent seeking the change needs to first prove to the court that there is a valid reason to modify. These reasons include:

1. De Novo Review. The prior order contains an agreement between the parties to consider a future change of custody looking only at the best interest factors and no additional reason is needed.
2. Agreement. Both parties agree to a change in custody.
3. Integration. The child “has been integrated” into the parent’s house with the consent of the other parent. This means that even though the custody order says Parent A has custody, the child has been living with Parent B long enough to fully become a part of Parent B’s house and Parent A has allowed this arrangement.
4. Endangerment. The current environment endangers the child’s physical or emotional health.
5. Move Out of State. The custodial parent’s request to move the child out of the state of Minnesota has been denied and the custodial parent relocates out of state despite the court order.

Once the court has found one of those reasons to change custody exists, the court will then consider the best interest factors in determining whether there should be a change of the custody order.

Initial Custody v. Change of Custody

While an initial custody determination is a one-step process (considering the best interests) a change of custody is a two-step process (first establishing the reason for a modification and next considering the best interest factors). Because of this, a change of custody action can easily be more complex, more time consuming, and more expensive than the initial custody action. Like many things in family law, it is important to take the time to get it right the first time.

Child Support at a Glance

While child support determinations may vary state to state, the courts generally consider a number of factors in reaching these decisions, including:

• The income of each parent
• Whether one parent is paying spousal maintenance to the other
• The health, medical, educational, and childcare expenses of the child

Child support orders specify the amount that is to be paid and usually require payments to be made on a monthly basis until the child becomes an adult.

Enforcing a Support Order

While both parents are responsible for the financial well-being of their children, the parent who has primary custody will typically be awarded child support. A parent who fails to comply with court ordered child support can be held accountable by the other parent. In order enforce the order, it is necessary to file an “Order to Show Cause” or a similar legal document with the court. This order must also be served on the non-paying parent.

The court will then hold a hearing and the non-paying parent will need to explain why the payments have not been made. In some cases, there may be legitimate reasons, such as a sudden loss of income or an illness or other emergency. If the order was violated without cause, however, the court will move to enforce the order. In these situations, the court has a number of options, such as ordering payments to be automatically deducted from the non-paying parent’s paycheck.

If the parent is a repeat offender, the court can also garnish his or her wages, place a lien on real property or even seize bank accounts. A more drastic step, the court may find the non-paying parent to be in contempt of court which could result in a prison sentence and fines. However, courts are generally not inclined to go this far since the parent will then be unable to earn income to comply with the child support order.

If you are receiving child support collection services through the county child support office then the county will often initiate enforcement procedures through the court system.

A picture is worth a thousand words. That picture you posted of yourself in a questionable situation speaks volumes to the court and can result in unfavorable rulings regarding child custody or visitation. The information posted doesn’t even have to be tawdry or illegal to land you in trouble. What about the parent with claims of no income for child support, a Facebook profile chock-full of photos of luxury purchases or exotic vacations? Or the parent who posts profanity-laden status updates, insulting the judge’s competence? Should it find its way into the court, none of this information is going to help their case.

All of these communications can be considered by the court in making its rulings. Nothing you post online is 100% private, regardless of your privacy settings. Opposing attorneys can always subpoena the records, share your dirty secrets with the court, impeach your credibility, and obtain a favorable ruling for their client – your ex.

The lasting implications of a negative court ruling can far outweigh the momentary, fleeting satisfaction of venting your frustration at the judge or your ex, or sharing “fun” photos on your Facebook profile. The bottom line is that you have to think before you post. It has often been said that you should not publish anything that you wouldn’t want your Mother to see. A similar standard should be applied for those going through a divorce or custody battle. What if that comment you are about to make, or the photo you are about to post, were to fall into the hands of your ex’s lawyer? This can have far-reaching consequences, affecting your income and support obligations, or visitation and custody of your children.

To avoid the pitfalls of information sharing in the digital age, you must assume that anything and everything you post will be obtained by opposing counsel and find its way into the courtroom. Family law cases involve some of our most private matters and care should be taken to ensure you protect your own privacy. Preserve your attorney-client privilege by refraining from sharing any details of your relationship or conversations with your attorney. Avoid posting compromising photos, or making derogatory remarks on your social networking profiles.

Above all, do not post anything you wouldn’t want your ex, his or her attorney, or the judge to see. Regardless of how restrictive your privacy settings may be, this information can easily be subpoenaed and become a part of the court record. If there is any doubt, do not post. You cannot “unring that bell!”

1. 50/50 Custody does not exist. Custody is two-parts: legal (decision-making for medical, religious, and educational issues) and physical (daily care). Each part can be   either sole or joint – not 50/50. For purposes of calculating child support, we look at how much time a child spends with a parent. There are three possible categories: less than 10%, 10-45%, or 45.1-50%.
2. Children NEVER get to decide where to live. While a child’s reasonable preference is one of the best interest factors – it is only one of thirteen factors, not the only factor. The magic age is 18 – at which time the child is an adult.
3. Both parents’ income will be used in determining child support. Both parents are expected to work full-time and the court will calculate child support based on “potential” income if you are not working full-time (or are voluntarily working at a decreased income).
4. Most parents have joint legal custody. Except in cases of domestic abuse, there is a legal presumption favoring joint legal custody.
5. Joint physical custody is an unknown development. Joint physical custody has increased in recent years, but it is too early to know the legal implications. Some judges favor joint physical, while others are very cautious with joint physical custody. There can be pros and cons to joint physical custody.
6. Modification has a different standard. Modifying parenting time only needs to be in the child’s best interests. Modifying custody needs agreement, integration, or endangerment.
7. There is no “one size fits all” parenting schedule. While there are several common schedules, each family is unique and should develop a schedule that will be most beneficial for them.

Despite this progress, people with disabilities who have children are more likely to have their parental rights terminated or lose custody after a divorce.

Discrimination in the Courts

These discriminatory actions are often justified on the grounds that the courts are protecting the best interests of the child, but there is little research to support the assumption that someone who is disabled is incapable of being a good parent. In fact, according to advocacy groups there are likely more than 4 million parents with physical disabilities currently raising children.

Most family courts work diligently to provide services and support to ensure that children maintain contact with their parents whenever possible. This is not always the case when disability is involved. There have been cases where disabled parents have not been allowed to bring their newborns home and the state subsequently filed to have their parental rights revoked, even in the absence of evidence of abuse or maltreatment. The presumption is that the disability endangers the welfare of the child. Currently, two thirds of the states have laws permitting the removal of children based on the disabled status of the parent.

Disadvantage in Custody Cases

Parents with disabilities are also at a disadvantage in custody cases, particularly if the ex-spouse does not have a disability. Competent parents with special disabilities require knowledgeable advocates who can demonstrate that they are able to effectively carry out their parenting duties in their own adaptive ways.

Fighting Discriminatory Practices

Advocates for the legal rights of parents with disabilities are waiting for a landmark trial that halts the discrimination suffered by parents with disabilities and protects their rights to have and raise children. While everyone agrees that children should not be exposed to a hazardous environment, decisions to remove children from homes where a parent is deaf or has a low IQ are often made by individuals who fail to grasp the remarkable capabilities of such parents despite their significant handicaps. More education on disability issues is needed at all levels of the child welfare and family court systems. At the same time, parents with disabilities must have better access to fair legal representation and support services.

What is mediation?

Mediation is the process where a neutral third party oversees a conversation between parties, with the goal of helping the parties talk to each other and reach an agreement on disputes. In a traditional facilitative mediation, the mediator does not give any opinions or feedback to the parties (which can be provided in an evaluative mediation). While some mediators are also lawyers, there is no requirement that a mediator have legal experience. As a neutral third party, mediators are not to give legal advice to the parties nor assist with drafting the legal court documents (even if the mediator is also a lawyer). Many mediators will draft a memorandum of understanding outlining any agreements reached at mediation, but this is rarely a legally binding document or submitted to the court.

Misconception: We can use a mediator instead of a lawyer.

While some mediators are also lawyers and vice versa, mediator and lawyer are two distinct roles and the same professional can not ethically wear both hats in the same case. A mediator facilitates the conversation and encourages the parties to reach an agreement. A lawyer guides the client through the legal process, providing legal advice and preparing legal documents. While there may be some overlap in the subject matter, a divorce mediator and a divorce lawyer are not interchangeable.  Unless the parties are prepared to handle the court process pro se (representing themselves) and have a sufficient understanding of the legal issues, their rights, and the consequences of their agreement, a lawyer will be needed in addition to the mediator.

Misconception: If we want a friendly divorce, we need to use a mediator.

In some cases a divorcing couple are able to reach agreements on their own. They trust each other and are able to communicate easily. They want to have a friendly divorce. For this couple mediation would be a waste of time and money. They don’t need a third party to help them talk to each other when they are able to communicate themselves. They don’t need mediation to reach an agreement they have already reached. There are a variety of ways to have a friendly divorce that do not require mediation, including an uncontested divorce or collaborative divorce.

Misconception: We’ll always save money going to mediation.

While resolving disputes before trial is always good for saving money, mediation is not always the answer. For the couple able to communicate and reach agreement on their own, mediation is an unnecessary expense. For the couple who choose to hire a mediator instead of a lawyer, only to discover they do need a lawyer to handle the court process, or worse, to fix the problems their pro se divorce created, mediation does not save money.  For the couple with a more complex situation, extremely different opinions, and/or a relationship so deteriorated that there is no trust or ability to communicate, meditation alone (without the advice and guidance of attorneys) is not likely to be productive and can add to the overall expense of the process instead of saving the parties money.
Mediation can be a great tool in the divorce process. But it is only one tool in an entire toolbox and is not the answer for everyone.