Tag Archives: Custody

Divorce Can Have Some Positive Benefits For Children

I have seen many ugly divorces and custody battles. It is without doubt an ugly divorce where children are used as pawns or placed in the middle of conflict will cause serious emotional harm to children. It has been a pleasant change that the procedures and family law rules have now been changed to encourage amicable resolution of custody disputes without ugly litigation through Mediation or Social Early Neutral Evaluation and to minimize Temporary Hearings until amicable Alternative Dispute Resolution is attempted.

Some experts are also now confirming that divorce can have some positive benefits to children.  Jackie Middleton has stated in Canadian Living that many divorce children can experience these five benefits:

1. Divorced children often learn to be Resilient and Adaptable.

2. Divorced Children often learn to be more Self-Sufficient.

3. Divorced Children often have an increased sense of Empathy towards others.

4. Divorced Children will often not take their own marriage for granted.

5. Divorced Children often learn more about each parent based on the quality time they spend alone with each parent individually rather than in a family setting.

There is far from consensus opinion on how divorces affect children. But based on my observations and experience it is very important to keep the children out of the conflict. Children do far better when they have both parents in their lives and are not subject to a parent constantly bad-mouthing the other.

Your children will be much better off, as will you, if you find a way to settle your Parenting Disputes and avoid Custody Litigation and a Custody Trial. Sometimes this is not possible, but do your children a favor and do your best to keep them out of the conflict.

A good divorce lawyer can litigate when necessary, but also can guide you through more amicable options and procedures that can lead to an amicable settlement. It is critical to promptly retain an experienced divorce attorney at the beginning of any divorce or custody dispute.

 

 

 

Significant Other’s Can Impact Custody Decisions

In an unpublished opinion in Newman vs. Newman, A15-0561 (Minn.Ct. App. Dec.21, 2015) the court of appeals reviewed an appeal from a divorce involving a 16 year marriage involving three minor children with a mother who had been a full-time homemaker since 2003 and a father who recently retired early. The trial court granted joint legal custody, but granted the father sole physical custody.

Mother appealed and claimed the trial court erred in not granting her joint physical custody or sole physical custody.  The appellate court noted there had been acrimony and a lot of personal attacks in the case and that a current harassment restraining order precluded father from harassing the mother. It was noted this conflict did not support their ability to cooperate under a joint physical custody arrangement.

The court also found that although there was not evidence of domestic abuse, the court had deep concern about the safety of the parties’ daughters around the mother’s live in boyfriend who had been convicted of felony invasion of privacy of a minor for hiding a video camera in his 17 year-old, step-daughter’s bathroom. It was specifically ordered the mother’s parenting time not include her boyfriend and that the mother’s boyfriend directing impacted the physical and emotional safety of the children.

In addressing the best interest factors the court noted nine were neutral, one inapplicable, two favored the father and one favored the mother. The deciding factor was the interaction and interrelationship of a person who may significantly affect the children’s best interests.  In this case the mother’s decision to live with a convicted felon who had harmed his step-daughter lead to her losing physical custody.

If custody is an issue in a divorce or paternity action it is crucial to immediately consult with an experienced divorce lawyer or knowledgeable family law attorney. Decisions about living arrangements, significant others, and high conflict disputes with your spouse can preclude sharing joint physical custody or even lead to a longtime homemaker to lose physical custody.

 

 

 

New Custody Law Factors Starting August 1, 2015

After years of debate Minnesota has substantially revised the “best interest factors” to determine Custody under Minnesota Statute 518.17, effective August 1, 2015. There have been meetings and substantial debate since 2012 on how the custody laws should be modified. An important overriding factor considered was to promote the best interests of the child by promoting the child’s healthy growth and development through safe, stable, nurturing relationships between a child and both parents. The factors now emphasize pieces that impact a child’s safety, stability and well-being and nurturing relationships. A shift now more explicitly looks at a child’s relationship with both parents.

The prior law included 13 factors and an additional 4 factors if either party requested joint physical custody. The new law now relies on 12 factors in each case.

1) How does a proposed custody arrangement impact a child’s development and a child’s physical, emotional, cultural, spiritual, and other needs? This is to focus on the child’s needs rather the parental requests as a factor.

2) A court shall consider any special medical, mental health, or educational needs of the child requiring special parenting arrangements. This is a whole new factor.

3) A court shall consider the reasonable preference of the child, if the court determines the child to be of sufficient ability, age, and maturity to express an independent, reliable preference.

4) A court shall determine whether domestic abuse has occurred in the parent’s relationship or household and the implications of the abuse for parenting and the child’s safety, or developmental needs.

5) A court shall also look at whether any  physical, mental or chemical health issue of a parent impacts a child’s safety or development.

6) A court shall consider the history and nature of each parents participation in providing care for the child. Appears to simply the prior primary caretaker factor.

7) A court is to look at the willingness of each parent to care for the child, to meet the child’s developmental, emotional, spiritual, and cultural needs and to maintain consistency and follow through with parenting time.

8) A court shall evaluate the child’s well-being and development of changes to home, school, and community.

9) A court shall evaluate the effect a proposed arrangement on realtionships between the child and each parent, siblings and other significant persons in the child’s life.

10) A court shall determine the benefit to the child in maximizing parenting time with both parents and the detriment in limiting parenting time with either parent.

11) Except when domestic abuse has occurred the court shall evaluate the disposition of both parent’s to support the child’s relationship with the other parent and to encourage and permit frequent contact with the other parent.

12) The willingness and ability of parents to cooperate in raising the child and to maximize sharing information and to minimize exposure to parental conflict as well as utilize methods to resolve disputes on major issues impacting the child.

The law changes are yet to be interpreted, but appear to make major shifts in emphasis on the child’s needs and yet to be broader in focusing on both parents.

In dealing with Custody issues it is always best to retain experienced legal counsel to be fully prepared to artfully advocate your concerns and interests. There are many decisions to made in custody disputes concerning the Process, Experts, Mediators or Litigation, which are best handled with the assistance of knowledgeable legal counsel.

Modifying Custody Agreements under Minnesota Law

Modifying Custody Agreements under Minnesota Law

Under Minnesota Statute Section 581.18(d), when a court has jurisdiction to determine custody orders, the court may not modify a custody order that specifies the child’s primary residence unless, since the prior order, there has been “a change in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child.” The Minnesota Court of Appeals recently explained the standards for determining both “a prior order” and “change in circumstances.” In Spanier v. Spanier, A13-2175 (Minn. Ct. App. Aug. 18, 2014), the Court of Appeals held that an order changing parenting time was not a prior order regarding custody, and that a parent who was enlisted in the military and received orders to deploy to another state was not a change in circumstances when the parent was living in another state because of military service at the time of the initial custody decision.

Specifics of the Case

At issue in Spanier was an original divorce decree that had granted the father, who lived in Minnesota, sole physical custody of the children. At that time, the mother was enlisted full-time in the Navy Reserve and resided in San Diego, California, with orders to deploy abroad. Subsequently, in 2010, after she learned she would be was stationed in Minnesota as of January 2011, she moved to modify the custody and parenting time. The parties resolved the motion by agreement, with the father maintaining sole physical custody and the mother having equal parenting time while she lived in Minnesota.

That agreement apparently worked well while both parents lived in Minnesota, but the mother then received orders to deploy to Virginia effective March 2014. She moved to modify the custody order so that her children would move with her to Virginia, and she lost both in the district court and on appeal.

First, the Minnesota Court of Appeals found that the order modifying parenting time so that the mother had equal parenting time was not a prior order regarding custody. Thus, an order that does not modify physical or legal custody is not a “prior order” under section 518.18(d). The result was that the prior order in this case was the original order, which granted the father sole custody, with the children residing in Minnesota while the mother was residing in California.

Second, the Minnesota Court of Appeals held that there was no relevant change of circumstances to warrant a change in custody. The court held that the circumstances – that the mother was deployed by the Navy and living in another state – were the same circumstances that existed at the time of the prior custody order. The court noted that the mother was well aware that her military service could result in her being deployed to locations apart from her children, and that the move to Virginia resulted from her employment, and her employment had not changed since the original custody order. The court also noted that the mother could be deployed anywhere; in fact, she had been deployed to Jordan from August 2009 to March 2010

An Attorney Can Help You with Your Case

This case makes clear that an original custody order can have long-lasting consequences because a change in circumstances is a necessary element of a motion to modify custody. Thus, it is useful to consult with an experienced family law attorney in resolving custody disputes. Jeffrey R. Arrigoni, Attorney at Law can help you solve any of your family-law related problems.