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.

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.

1. A change in the circumstances of the child or custodian;
2. That a modification would serve the best interests of the child;
3. That the child’s present environment endangers her physical or emotional health or emotional development; and
4. That the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change.

The change in circumstances must be significant and must have occurred since the original custody order; it cannot be a continuation of conditions existing prior to the order. The best interests of the child are determined according to the factors listed in Minn.Stat. § 518.17 (2009). Endangerment requires a showing of a “significant degree of danger,” but the danger may be purely to emotional development. The balance of harms may sometimes be implicit in the other factors.

In Minnesota, the wishes of a child are taken into account when determining modification of custody.  But there is no magic age when the child gets to choose where to live. 

Preferences alone do not provide sufficient evidence of endangerment to mandate a hearing. The moving party must have specific, credible evidence, not vague, conclusory statements, to show child endangerment. The party must allege an actual adverse affect on the child’s emotional health or development. Allegations of emotional abuse should be specific to rise to the level that may constitute sufficient endangerment. An alleged single incident of borderline abuse or neglect has been held not to constitute sufficient endangerment to warrant a custody modification. Evidence sufficient to show endangerment can include that an older teenage child:

1. Has strong preferences to live with the non-custodial parent;
2. has relocated himself or herself to the non-custodial parent’s home; and
3. has evidence of distress while living with the custodial parent as shown by school problems.

Minnesota law rests on a belief that stability of custody is in a child’s best interests. In cases involving teenagers’ preferences, Minnesota has generally endorsed the child’s preference when the child sought to remain in his or her present living arrangement or to return to a previous long-term custodial arrangement. Where a child has never resided for any length of time with a noncustodial parent and preference is the grounds for the transfer, there must be such severe endangerment as a result of the current custody that the other arrangement would present less risk.

A child’s choice may be found foolish if there are objectionable influences such as undue influence by the noncustodial parent or unfounded beliefs by the child as to that parent’s leniency. However, the possibility of objectionable influences does little to diminish the weight of an older teenaged child’s preference.

A child’s preference is only one factor among many that a court uses to assess the best interests of a child

Although it is important to consider the wishes of a child of suitable age, it is seldom in a child’s best interest to place upon him the entire burden of such a difficult decision as custody. There must be actual evidence of a current danger to the child so as to require an evidentiary hearing.

So before a noncustodial parent runs out to file an affidavit, the situation must be examined from all angles to ensure that there is endangerment to the child beyond merely the child’s wishes and that a move would truly be in the best interest of the child.
Sources:
Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App., 1997).
Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App., 1991).
Minn.Stat. § 518.17 (2009).

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?