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.

Myth: Child support payments are based on the needs of the children.
Fact: Support payments are based on the parents’ ability to earn income and have little basis in the actual costs to raise a child.

Myth: Child support payments must be spent on the child.
Fact: No state requires child support recipients to account for expenditures or prove they were necessary to meet the child’s needs, or even whether they were spent on the children at all.

Myth: I can move out of state to dodge my child support obligations.
Fact: Each state has its own child support enforcement agency and these agencies all work together. You cannot escape this obligation.

Myth: I can quit my job in order to avoid making child support payments.
Fact: The courts are permitted to “impute” income to a parent who intentionally quits a job, whether or not that parent is currently earning a paycheck. Obligations will continue to accrue and payments must be made.

Myth: I have lost my job and can’t make my child support payments, so I will be sent to jail.
Fact: You can only be incarcerated if you have the ability to pay but refuse to do so. If you have legitimately lost your income and do not have the ability to pay, you will not be criminally liable for non-payment.

Myth: My ex-spouse uses child support payments for shopping, dining and to support a lavish lifestyle; therefore, my support payment should be reduced.
Fact: So long as the custodial parent pays expenses to feed, clothe and house the minor children, which is the ultimate purpose of child support payments, whatever else he or she spends money on is generally not scrutinized.

Myth: My living expenses are high and I cannot afford the child support payments; therefore, my support payment should be reduced.
Fact: Generally, expenses must be necessary and extreme in order to be considered as a basis for modifying child support calculations.

Myth: Child support payments are deductible on my income taxes.
Fact: Child support payments are not deductible to the paying parent; nor are they considered “income” to the receiving parent.

Myth: If I have children with a new partner, my child support payments will decrease.
Fact: The birth of a new child will not necessarily reduce your obligations to make child support payments to a prior partner.

Myth: My ex-spouse claims she can modify the child support order and take my house, bank account or other assets.
Fact: A future child support modification can only address the amount of child support payments going forward and are based upon income or imputed income. Assets typically are not considered in modifications.

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.

Documents:

• Obtain copies of your divorce decree. A plain copy may be provided by your lawyer or the court. Certified copies can be purchased from the courthouse.
• Sign and exchange any titles, deeds, or other documents as required by your decree.
• Confirm that all necessary documents are being prepared regarding division of retirement accounts or transfer of real estate.
• Organize your divorce papers and file away in a safe place.

General Tasks:

• Contact the Post Office to complete a change of address and forward mail.
• If your name was changed, take the steps necessary to complete the process.
• Inform your Human Resource Manager about your divorce to update your name, tax filing status, benefits, and direct deposits.
• Update your health insurance by removing your ex from your policy, applying for COBRA coverage, or finding a new policy.

Property:

• Record all transfers of real estate by filing the Summary Real Estate Disposition Judgment or Quit Claim Deed with the appropriate property office.
• Re-register motor vehicles and other titled property in your name alone.
• Update authorizations and ownership on open credit accounts, safe deposit boxes, utilities, and other accounts.
• Close any remaining joint accounts.

Taxes:

• Adjust your tax withholding to reflect your new marital status.
• Consult a tax professional to review tax implications of your divorce.
• Remember: if you receive spousal maintenance you will be taxed for those payments

Retirement and Investments:

• If you were awarded some of your spouse’s retirement account(s), make sure a Qualified Domestic Relations Order is drafted and submitted.
• Consider working with a financial professional to review your investment plan.

Estate Planning:

• Complete an “Estate Audit”
• Review life insurance policies and update beneficiary designations.
• Create or revise your estate plan, including a will and/or trust, Power of Attorney, and Health Care Directive.
• Discuss with your attorney provisions related to the care of your children.

 If You Have Minor Children:

• Apply for Automatic Income Withholding for child support payments.
• Keep track of all out of pocket medical expenses and reimbursements. Regularly exchange receipts and arrange payment with the other parent.
• Include the Parenting Time schedule on your calendar. Consider displaying the schedule for the children.
• Consider setting up a shared online calendar for the children’ schedule.

Whereas the old system used a fixed percentage of the obligor’s net income based on the number of kids (25% for 1, 30% for 2), the new law is a bit more complex and considers several different factors. The new law also looks at three distinct categories of child support; basic support, medical support, and childcare support.

PICS and Percentages

The basic premise behind the new law is that the income from both parents’ should be considered. By combining the gross monthly income of the parents, you get the parties’ PICS (combined parental income for determining child support), you also figure out what percentage of the combined income each parent has.

Basic Support

In the child support statute (518A.35, subd. 2) there is a child support guidelines chart. The legislators have somehow figured out that parents with a combined monthly income of $X, who have X number of children, spend (or should spend) $X amount a month on support for the children.

For example, lets say Alice and Bob have two kids and a combined monthly income of $4,600. The magic child support guideline number is $1,200.

So now we look at the percentage of income each parent has. If Bob and Alice each earn $2,300 a month, then they each have 50% of the income. If Bob earns $3,450 and Alice earns $1,150, then Bob has 75% of the income and Alice has 25%.

The basic child support number is $600 per month (50% of $1,200) if both parties earn $2,300 (no matter who has primary custody). If Bob earns $3,450 and Alice earns $1,150, the basic child support number is $900 per month (75% of $,1200) if Alice has primary custody and Bob pays child support or $300 per month (25% of $1,200) if Bob has primary custody and Alice pays child support.

But that is not the end of the calculation. The new law looks at the amount of time the parents spend with the children. If the parent paying child support spends 10-45% of the time with the children, there is a 12% reduction from the basic child support number. If the parent spends 45.1-50% of the time with the children, parenting time is presumed equal and there is a slightly different calculation for child support (518A.36, subd. 3).

Medical Support

Medical support is separate from basic support and includes both the cost of medical and dental insurance for the children as well as unreimbursed or out of pocket expenses. These costs will be shared according to the parties’ percentage of the income (i.e. Bob pays 75% and Alice pays 25%). If the party without the children covers the insurance, then the basic support obligation will be used to offset the custodial parent’s share of the insurance.

To figure out medical support, you will need to know what the health insurance costs are. But this is not as simple as looking at a paystub to see what is taken out. You need to know how much it costs just to cover the children. Some plans are $X for employee and $Y for employee + family, some are $X for employee, $Z for employee + spouse and family, $Y for employee + family, and others are $X for employee, $Z for employee + 1, $Y for employee +2, and so on. Get the benefits information from the employee and find out all of these costs. Then take the cost to cover the kids and subtract the costs to cover the employee ($Y – $X), this is the cost of health insurance for the children and this is the cost you will need to calculate medical support.

Childcare Support

Childcare support is for work or school related childcare expenses. Childcare expenses are also paid according to the parties’ percentage of income. But because there is a tax benefit to the parent claiming these expenses, the tax benefit is considered first, and then the cost is apportioned between the parties.

Determining Income

A tricky part to this is figuring out income. You need to know each parties’ gross (before taxes) monthly income. The new law also expects that (nearly) all parents can work full-time and allows the imputation of potential income for parents who are not working full-time. There are also different “discounts” for a parent’s income based on supporting other children or paying spousal maintenance.

Gross Income

Under the statute, gross income is defined by section 518A.29(a) as: “any form of periodic payment to an individual, including, but not limited to, salaries, wages, commissions, self-employment income under section 518A.30, workers’ compensation, unemployment benefits, annuity payments, military and naval retirement, pension and disability payments, spousal maintenance received under a previous order or the current proceeding, Social Security or veterans benefits provided for a joint child under section 518A.31, and potential income under section 518A.32.”

Potential Income (also known as imputed income)

The law now clearly states in section 518A.32 that: “If a parent is voluntarily unemployed, underemployed, or employed on a less than full-time basis, or there is no direct evidence of any income, child support must be calculated based on a determination of potential income. For purposes of this determination, it is rebuttably presumed that a parent can be gainfully employed on a full-time basis. As used in this section, “full time” means 40 hours of work in a week except in those industries, trades, or professions in which most employers, due to custom, practice, or agreement, use a normal work week of more or less than 40 hours in a week.”

Even if a parent does not work full-time, a full-time income will be used for purposes of calculating child support. And if a parent is underemployed (really is a highly skilled surgeon who used to make $500,000 a year, but is now working for minimum wage), child support will be calculated based on what that parent could be making. A parent will not be considered unemployed or underemployed if it is temporary and will ultimately lead to increased income (i.e. going to school), is a “bona fide career change that outweighs the adverse effect of that parent’s diminished income on the child”, or the parent is incapacitated or incarcerated. Potential income will not be used if a parent is the recipient of a temporary assistance to needy family cash grant (TANF/MFIP).

Potential income can be determined using one of three methods:

(1) the parent’s probable earnings level based on employment potential, recent work history, and occupational qualifications in light of prevailing job opportunities and earnings levels in the community;

(2) if a parent is receiving unemployment compensation or workers’ compensation, that
parent’s income may be calculated using the actual amount of the unemployment compensation or workers’ compensation benefit received; or

(3) the amount of income a parent could earn working full time at 150 percent of the current federal or state minimum wage, whichever is higher.

Spousal Maintenance

The IRS considers spousal maintenance deductible from the income of the party who pays it and included in the income of the party who receives. In calculating child support, spousal maintenance that is paid (to a former spouse or in the current action) is deducted from that party’s income. Spousal maintenance that is received is included in that party’s income. And this means spousal maintenance must be figured out before a final computation of child support can be done.

Nonjoint Children

When calculating child support, you also need to know the number of nonjoint children living with a parent and the amount of child support that is court-ordered to be paid (not received) for nonjoint children. A nonjoint child is a legal child of one of the parties, but not both of the parties. A stepchild is not considered a nonjoint child. When determining the monthly gross income available for child support, a parent receives a credit for nonjoint children living in their home (for a maximum of two nonjoint children) or for court ordered child support paid for a nonjoint child.

Using The Calculator

Although the statute does explain how to calculate child support under the new income shares model, the online Child Support Calculator provided by the Minnesota Department of Human Services is a lot easier and more user-friendly. There are jut 3 simple steps:

1. Go to the website
2. Enter the data, and
3. Click “Calculate”.

The calculator has 20 different lines for information. Not every line is necessary, and not every line will be applicable in all cases. Almost all lines include a hyperlinked definition box, so if you do not understand what the calculator is looking for it is easy to figure out. While there is still room for argument on what numbers should be used to calculate child support, or what child support should be, the calculator is a quick and easy way to determine the guideline child support amount.

In Minnesota, physical custody is the routine, daily care of the children. Parties can have joint physical custody, or one party can have sole physical custody. Joint physical custody does not mean 50/50 – in fact some parties may use the term “joint,” although the children spend almost all of their time with one parent. Parenting time (formerly known as visitation) is the time that each party spends with the children. When figuring out child custody and parenting time issues, here are some things for you to consider:

1. Forget about what you want – focus on your children’s best interests.

Too often times I hear phrases such as “I want full custody” and “he doesn’t deserve 50/50.” The court doesn’t care what you want or what he “deserves.” The court cares about the best interests of the children. Let’s keep the discussion focused on the kids.

2. Take money out of it.

The bias that I have, and the bias that judges, custody evaluators, and other professionals have, is that some people fight over parenting time because of the effect that has on child support calculations. Minnesota’s child support guidelines use a different calculation when the children are with each parent nearly 50% of the time. Some parties get stuck on the schedule because they are tied up on the finances. Focus on the children and figuring out a schedule that works for everyone first, and then talk about the money.

3. Understand that there is not a “one size fits all” arrangement.

When I have a client come to me and say “we just want the normal schedule” or “we want the 50/50 schedule,” I have to ask, “what does that mean to you?” Your family is different, your family’s schedule should be tailored to your family’s needs.

4. Keep in mind your child’s developmental needs.

Consider a multi-step plan. Children need different things at different stages in their lives. A teenager can spend longer periods of time away from one parent than an infant can. The Minnesota Supreme Court Advisory Task Force on Visitation and Child Support Enforcement’s publication A Parental Guide to Making Child-Focused Parenting Time Decisions goes through the different stages of child development and makes parenting time suggestions. This is not the law, and all children may be different, but it is a good starting point. If you have very young children, consider designing a parenting time plan with multiple steps (i.e. until Susie’s first birthday, from age 1 until age 3, from age 3 until age 5, upon starting school…).

5. Maintain as much stability as possible.

The break-up of a family is a very difficult and stressful time for all involved, especially for the children stuck in the middle. Do what you can to maintain stability in your child’s life. How has the family operated while the parents were together? Where were the children going to school and daycare? What activities were the children involved with? Work on creating a predictable schedule that your children can easily adjust too.

6. Consider the practical realities of the situation.

Something that looks great on paper just may not work for your family in real life. If Dad has to work every third weekend, an alternating weekend schedule may cause problems. If one parent is living in Monticello, and the other parent is living in Hastings, mid-week visits might not work. If there is truly going to be a joint schedule, both parents must be committed to staying in the same general vicinity – preferably in the same school district.

7. Take into account work schedules and school activities.

If Mom works every Wednesday night, it generally makes sense for the children to be with Dad instead of with a babysitter every week. If Dad works every Friday night, it makes sense for a weekend to start Saturday morning instead of Friday afternoon. If the kids are in soccer every Tuesday and Thursday night, figure out the easiest way to handle those nights.

8. Remember holidays and vacations too.

A proper parenting time schedule will include not only the regular weekly schedule, but also holidays and vacations. Do not put in your document “the parties shall alternate every other legal holiday.” You probably don’t care where the children spend Flag Day. If your extended family always has a family celebration on the first Saturday of November – then include “Jones Family Celebration (first Saturday of November) in your holiday schedule. Also consider how much vacation time your family needs and what type of notice to the other parent is required. Most of the time, each party is given 2-3 weeks for vacation. But if your extended family is in Europe, and every summer you spend 3 weeks with them, and you might want to have another week or two to take the kids to Disneyland, you’ll want to have more vacation time.

9. Be as specific as possible – but be flexible.

Court orders that award a parent “reasonable and liberal parenting time” are just waiting to cause a fight. What exactly does reasonable and liberal mean? To one parent it may mean every other weekend, to the other it may mean 2 weeks at a time. And to the police officer called to enforce it, it means “a civil matter I don’t want to deal with, go back to court.” Your parenting time arrangements should be as detailed as possible. But at the same time, it is important for both parents to be flexible. Life happens, things come up, and sometimes we all just need to roll with it.

10. Learn to communicate and decide how to resolve disputes.

The divorce or custody case may be over tomorrow – but the two of you will be co-parents for the rest of your lives. How will you communicate about the important events in your child’s life? Are you able to call each other on the phone or send an e-mail to share information? Do you need to use a parenting notebook? Should you maintain some sort of calendar to keep track of the kids’ activities? What happens when there is a disagreement over parenting issues or schedules? Especially when you have young children, there will be many opportunities in the future for disputes to arise. Decide how you will handle these disputes if you are unable to reach a mutual agreement. Will you go to mediation or a parenting time expediter or a parenting consultant? How will this professional be selected?