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Role of a Parenting Consultant

January 4th, 2013

A Parenting Consultant (PC) has similar functions as a Parenting Time Expeditor (which we discussed in a previous post).  Parenting Consultants however, are not authorized by Minnesota Statute and are created solely on the basis of a contract.  Since there is no statutory authority for appointment of a parenting consultant, you cannot be court ordered to have one assigned to your case.  Parenting consultants can only be court ordered by the agreement of both parties.

Since a parenting consultant is created by contract, they essentially can be appointed for whatever purpose that they are needed for.  Often time a parenting consultant is appointed with the same enumerated powers that a parenting time expeditor has but in addition they are granted the authority to make permanent schedule changes.  One situation where having a parenting consultant in place to increase or decrease parenting time could be where a parent has issues with chemical dependency.  A parenting consultant can assist the parties in monitoring sobriety and increase parenting time if sobriety continues, or decrease time if there is a relapse.  Another example where a parenting consultant that has authority to increase time can be beneficial is with young children.  Parents may agree that a limited parenting time schedule is appropriate when their child is an infant.  However, a schedule for a 3 month old baby is not appropriate once the child gets older.  A parenting consultant can assist parents in increasing parenting time if they do not agree.

Parenting consultants may also be given the authority to decide legal custody decisions when joint legal custodians cannot agree.  This can be helpful if you are struggling with school choice for your children, or if you cannot agree on whether or not your child needs to get braces.  A parenting consultant may also be of value in deciding which extra-curricular activities that children participate in, and who pays for them.

Even though the issues decided by parenting consultants could be simply brought before the court in a motion, there are many advantage of using a parenting consultant versus going through the traditional court route.  Depending on the county that your case is venued in, motion hearing dates could be booked out as much as three months.  Even when you do get to your hearing date, your judicial officer statutorily has 90 days before they have to issue a decision.  You could be waiting more than 6 months to get your dispute resolved.  Judicial officers are limited in the amount of evidence that they can consider.  They can’t simply call up witnesses, teachers, or counselors and talk to them on the telephone whereas a parenting consultant can.

If you think that your case would benefit from having a parenting consultant, contact our office for a consultation with one of our experienced family law attorneys.  We have drafted many parenting consultant contracts and can assist you in choosing what authority to grant the parenting consultant.  Our attorneys also have the experience necessary to recommend the right parenting consultant for your case.

Financial Matters In Divorce

December 28th, 2012

Sometimes when facing divorce, once the parties figure out custody and parenting time issues, the remaining issues seem to take care of themselves.

However, some parties have a number of complex and difficult financial issues, like large debts, a variety of assets, or business ownership interests.  Still others have accumulated unique assets like original artworks, antiques, or valuable collectibles.  When financial issues can’t be decided by the parties, where do they turn?

For help in deciding complex and difficult financial issues, one option is a Financial Early Neutral Evaluation (FENE).

A FENE is held with an evaluator, someone who is a highly-skilled attorney or accountant with an extensive working knowledge of property issues addressed within Minnesota family law.  These evaluators have generally worked with the courts long enough to have a very good feel for how a judge is likely to decide regarding your property issues.  While your evaluator is not able to predict exactly how the judge will decide in your particular case, he or she can assist you in determining what property is marital or non-marital, give you creative options for handling various pay-outs such as spousal maintenance or the division of a 401k, and even keep you grounded when the stress of the divorce has you spending attorney’s fees to insist upon relatively worthless and easily-replaced items.

If your family law matter involves a divorce and you’re concerned about the division of assets or other financial issues, you need representation to guide you through the process.

 

Definition of a Karon Wavier & Nice-Petersen Standard

December 21st, 2012

In addition to the endless acronyms, some of which we have provided a key for in a previous blog post, you may hear your family law attorney use other terms which leave you scratching your head.  Sometimes these terms are actually names of previous court cases which have been heard by the appellate courts and changed the law in a particular area.

For instance, in a case involving spousal maintenance, your attorney may mention a “Karon waiver.”  This means that, based on a 1989 case that went to the Minnesota Supreme Court, i.e. Karon v. Karon, language can be put into your divorce decree which divests the court of jurisdiction to ever address the issue of spousal maintenance again.  Therefore, if you agree that there will be no spousal maintenance and you also have a Karon waiver, then neither spouse can ever come back to the court and ask for spousal maintenance in the future.  Likewise, if you agree to spousal maintenance of $500 per month for 5 years, then neither spouse can ask for the time period to be lengthened or shortened or for the amount to be raised or lowered.  You get what you agreed to and that’s it.  Period.

In a case involving a request to modify child custody, your attorney may discuss the “Nice-Petersen standard.”  This standard was established in a 1981 case, Nice-Petersen v. Nice-Petersen,  that went to the Minnesota Supreme Court and determined the threshold for obtaining an evidentiary hearing in a child custody modification proceeding is that the moving party must present sufficient evidence in affidavits, which the court must presume are true, to show that endangerment of the child has occurred.  If the moving party meets this standard, they are entitled to an evidentiary hearing, or trial, on the issue.

Our family law attorneys are well-informed on the current status of the key precedential cases in all areas of family law and will be able to advise you accordingly as to how they may apply to the particular facts in your case.  Please contact our firm today .

A Parenting Time Expeditor (PTE)

December 14th, 2012

A Parenting Time Expeditor (PTE) may be appointed to your case to deal with disputes over interpretation of your court order.  The parenting time expeditor was created by the legislature and has been authorized by Minnesota Statute §518.1751.  Since the parenting time expeditor is authorized by Minnesota Statute, you can have a PTE appointed to your case by either agreement or the court can appoint one to your case.

The function of the PTE is to resolve parenting time disputes.  They do this by reviewing the existing court order and then making a determination as to what the court order states or if the order is silent regarding the matter, they make the decision.  For example, your court order may state that each party has one week of vacation time with the children.  The other parent wants to take a week of vacation from Monday through Sunday following their weekend parenting time.  This would give that parent a 10 day vacation not one 7 day week vacation.  It also may cause one parent to not see the children for a significant period of time.  This dispute could be submitted to a PTE to make the decision as to whether the court order allows for 7 day weeks or 10 day weeks.  If the order is silent, the PTE will then issue an order stating what the vacation terms are.

Parenting time expeditors can also be used to make determinations regarding whether or not the court order has been violated.  An example of this situation might be if your court order stated that you were supposed to have the children for the 4th of July holiday but the other parent took the children on vacation that week and did not let you have your holiday time.  Or if the children’s other parent simply told you that you couldn’t have the children a particular weekend because they had something else planned.  The PTE would have the authority to decide if the parenting time had been wrongfully withheld and if so, they would have the authority to grant compensatory parenting time, or to give you the 4th of July holiday the following year.

Parenting time expeditors are also helpful to have assigned to your case to deal with unexpected situations.  PTE’s do not have the authority to change your parenting time schedule outright, but they do have the authority to authorize additional parenting time on a case by case basis.  An example of this situation may be that your parents want to take your entire family on a Disney cruise during spring break.  Your court order may not address spring break as a holiday, or may not allow you to take your vacation time with the children for any months other than the summer months.  The PTE would be authorized to allow you to take the children for additional parenting time if the circumstances merit it.

If you think that your case would benefit from having a parenting time expeditor appointed, contact our office for a consultation with one of our experienced family law attorneys.  We have successfully handled many contested motions for appointment of a parenting time expeditor.  Our attorneys also have the experience necessary to recommend the right parenting time expeditor for your case.

Part. 2: Common Acronyms In A Family Law Case

November 26th, 2012

Throughout the course of your Minnesota family law proceeding, you are likely to hear quite a few acronyms used by your family law attorney and by the Court.   Below is a key for Part. 2 of common acronyms you could come across in your family law case.

ADR:  Alternative Dispute Resolution.  This is a general term for methods of resolving cases outside of the courtroom.  ENEs, as well as mediation and arbitration, are forms of ADR.  Our Minnesota family law attorneys can discuss with you which method might be best for your case.

 J&D:  Judgment and Decree.  This is what we are trying to get to, in most cases.  This is the final order of the court in your case.  A Stipulated J&D is one that is agreed upon between the parties.

 QDRO:  Qualified Domestic Relations Order.  This is an order which would come after your J&D which divides retirement assets.  If one spouse is awarded some or all of a retirement asset in the other party’s name, the QDRO tells the plan administrator for the company through which the asset is held to whom and how much of the asset to transfer.

 OFP:  Order for Protection.  This is a no contact order involving family or household members where domestic abuse has been alleged to have been committed by one party against the other party or a child on whose behalf the protective order is being sought.  If you are served with an OFP, please contact one of our Minnesota family lawyers immediately to discuss your options.

ROP:  Recognition of Parentage.  This is a document, often signed at the hospital soon after the birth of a child born to unwed parents, in which both parties recognize that the male signing the document is the father of the child.  This document says that they acknowledge the father-child relationship without the need for paternity testing.  However, this document does not give the father any custody or parenting time rights.  In order to establish those rights, an action must be commenced in district court in the county where the mother or the child resides.  Please contact one of our attorneys to discuss how to start an action for child custody in Minnesota.

As always, if you have questions about any of the above acronyms, please call us to set up your  consultation.

Part. 1: Common Acronyms In A Family Law Case

November 19th, 2012

Throughout the course of your Minnesota family law proceeding, you are likely to hear quite a few acronyms used by your family law attorney and by the Court.   Below is a key for some of these acronyms:

ICMC:  Initial Case Management Conference.  This is the first acronym you are likely to hear because it’s often the first step after the case has been filed with the court.  An ICMC is a chance to meet the judicial officer assigned to your case and discuss resources that might be available to you for resolving your case without proceeding to litigation.  There are no arguments made or decisions issued at an ICMC.  Depending on the judge, he or she may not even wear a robe or sit on the bench.  There’s no court reporter taking anything down, unless you have agreements which you would like to formalize on the record.

ENE:  Early Neutral Evaluation.  This is one of the resources available mentioned above that will be discussed at your ICMC.  It’s “early” because it’s often right after the ICMC so before the case has really headed too far down the litigation track.  It’s “neutral” because it involves someone who doesn’t know anything about your family.  It’s an “evaluation” because, unlike a traditional mediation, the neutral(s) involved will give you an opinion about what they think after hearing some facts from you and the other party about your case.

FENE:  Financial Early Neutral Evaluation.  Typically only in Minnesota divorce cases, an ENE as described above which involves financial issues such as division of assets and liabilities and cash flow issues like spousal maintenance and child support.  An FENE just involves one neutral, usually an attorney or an accountant.  After providing the evaluator with information regarding your assets, liabilities, income, and expenses, the evaluator will then explain to you, based on their family court experience, what they think a likely outcome is for your case and see if they can help you and your spouse reach an agreement on the financial issues in your case.

SENE/CPENE:  Social Early Neutral Evaluation/Custody and Parenting Time Early Neutral Evaluation.  An SENE as described above which involves issues related to the children, included legal custody, physical custody, and parenting time schedules.  In order to ensure no gender bias, this process involves two neutrals, one male and one female, typically family law attorneys, social workers, or psychologists.  You will have the opportunity to tell the evaluators about the history of your relationship with the other parent, your relationship with your children, what you are asking for as an outcome in your case, and any concerns you have about the other parent.  You will also have the opportunity to hear the other parent tell the evaluators the same information from their perspective.  After hearing about the issues from both parties, the evaluators will confer and then give you recommendations on their opinion(s) as to likely outcomes in your case.  After hearing their recommendations, they will help you and the other parent try to reach an agreement which is in your children’s best interests.

As always, if you have questions about any of the above acronyms, please call us to set up your consultation.

Make sure to check back for Part. 2 of Common Acronyms In A Family Law Case

What to Expect In A Social Early Neutral Evaluation (SENE)

November 9th, 2012

Social Early Neutral Evaluation SENE or Custody and Parenting Time Evaluation CPENE (the name varies depending on which county you are participating in) is a form of evaluative alternative dispute resolution where you are given a neutral opinion of the strengths and weaknesses of your case.  SENE/CPENE is available in many counties throughout Minnesota.  The process is usually commenced at the beginning of a divorce or custody case.  The intent is to get parties talking about settlement of their case at the beginning of the process before people get entrenched in their positions.  However, SENE/CPENE can be effective at reaching a resolution at any point during the case.

The parties participate in the process with their attorneys present.  Two evaluators, a male and female are selected or assigned (depending on which county you are participating in) to the case.  You should plan to spend at least three hours at the SENE/CPENE.  The process begins with the evaluators explaining the confidentiality requirements and the way that the evaluation will be conducted.  The person who is the Petitioner in the court action will begin by telling the evaluators what they are seeking for custody and parenting time and why they believe their proposal is in the best interests of the children.  The evaluators and the Petitioner’s attorney may ask the Petitioner questions through out their presentation, but the Respondent’s attorney is not permitted to ask any questions of the Petitioner.  Following the Petitioner’s presentation, the Respondent is asked to tell the evaluator what they are seeking for custody and parenting time.  The challenge for the Respondent is to not be tempted to simply respond to the Petitioner’s presentation.  Again, the Respondent’s attorney and the evaluators will be allowed to ask the Respondent questions.  Next the evaluators allow each side one turn at rebuttal.

After all presentations are made to the evaluators, they will leave the room and discuss their impressions of the case.  This usually takes 15 to 20 minutes.  The evaluators then reconvene the session and give you feedback regarding what they think the likely outcome of the case will be.  At this point you can ask the evaluators questions about their recommendations and get any necessary clarification.

Following the receipt of the recommendations, you will then have the opportunity to discuss with your attorney privately your thoughts about what has been recommended.  You have three options at this point.  You can agree with the recommendations.  You can agree with some of the recommendations and propose changes to some portions.  Finally, you can disagree completely and walk away from the discussions.

After you have spoken with your attorney you again reconvene with the group and discuss each parties position regarding the recommendations.  At this point, usually you begin negotiating the terms of the settlement agreement.  Sometimes there will be a full agreement on all issues.  Other times, there may simply be a temporary agreement or a partial agreement.

Having a skilled attorney represent you through the SENE/CPENE process is crucial.  Our attorneys have represented numerous clients throughout the SENE/CPENE process.  They know how the process works and how to effectively prepare you and represent you through the process.  Call our office for a family law consultation today.

What is an Initial Case Management Conference (ICMC) Anyway?

November 5th, 2012

Unless you’ve been on jury duty or gone to court to fight a traffic ticket, you’re probably one of the majority of Minnesotans who’ve never had any contact with the courts, the court process, or even seen the inside of a courtroom.  So when your Minnesota Family Law attorney tells you there is an ICMC scheduled in your case, it’s likely you’re also one of the many who start getting nervous.  After all, it’s natural to be apprehensive of the unknown.

Well, the first thing you need to know is that an Initial Case Management Conference (ICMC) is nothing to be worried or stressed out about.  When you begin a family law case dealing with divorce, child custody, parenting time or paternity, it’s common for the judicial officer assigned to your case to begin with an ICMC.  But, what exactly is an ICMC?

We will tell you it’s an informal meet-and-greet road-mapping session with the judge or referee assigned to your case.  It’s a way for the judicial officer to get to know a little bit about the parties in the case, look over what’s being requested, and make the parties aware of various methods of alternative dispute resolution from which they can select to reach resolution of the case.

If you have a family law matter and would like representation to guide you through the process, contact  us.

Basics on Minnesota Child Custody

October 26th, 2012

Probably the most frequently asked question of Minnesota family law lawyers is how Minnesota child custody laws work.  Most clients want sole or shared custody of the children, but they’re not really sure how it works or even what that means.  The first thing you need to know about Minnesota child custody is that there are two kinds of child custody in Minnesota – legal and physical.

 

Legal Custody deals with decisions having to do with a child’s health care (including dental), religious and educational upbringing.  Legal custody is often simplified to: doctor, preacher, teacher.  In Minnesota child custody law, legal custody is presumed to be joint, requiring both parents to collaborate when making the decisions affecting their child’s development. While some Minnesota family lawyers may advise their clients that joint legal custody does not restrict one parent from unilaterally making legal custody decisions, the courts will often intervene, and may even penalize, a parent who denies the other legal custodial parent’s right to participate in the decision-making process.

If a court is considering joint legal custody between both parents, it must also consider factors placed in the statute that should be used to determine whether joint legal custody is advisable.  Specifically, the court will look at the ability of the parents to cooperate, if they have the ability to work together to resolve any differences they may have about the child or children, if it would be detrimental for one parent to have sole custody, and whether there has been any domestic abuse in the relationship between the parties.

 

Physical Custody deals with the routine daily care and control and residence of the child.  Physical custody is often simplified as, “where a child lays his or her head at night.”  Physical custody can rest with one parent as “sole” physical custody or with both parents who would then have “joint” physical custody.

A lot of parents believe physical custody also dictates visitation rights in Minnesota.  Visitation rights in Minnesota are actually referred to as parenting time, which has to do with the specific schedule each parent has with the child or children.  Parenting time is separate from custody and will be discussed in greater depth in a future blog.

Legal custody and physical custody in Minnesota can be determined by the court, but is more often determined through collaboration between the parents to develop a custodial arrangement that is in the child’s best interests and works best for each parent.  If you would like to determine legal and physical custody rights for your child, contact  us to discuss the specific facts of your case.

News on Spousal Maintenance and Child Support Arrears

October 18th, 2012

A recent article in the Bench and Bar reminds Minnesota family law attorneys that there are several ways to collect child support and spousal maintenance awards.  The article suggests that we not overlook something called a Qualified Domestic Relations Order (QDRO).  This is an order that divides a party’s retirement benefits.  In other words, if you are a parent that is owed substantial arrears because your ex-spouse or ex-partner is not paying court ordered support, your family law attorney can move the court for a QDRO which will take an immediate lump sum from a retirement account, rather than waiting for many years for the arrears to be repaid by automatic income withholding.

 

This method of arrears collection avoids the lengthy process of contempt where there are usually at least three costly hearings before the party owing the arrears feels any consequences.  It also avoids the trap of license suspension.  One quick solution that the county often takes when trying to collect arrears is to cancel the driver’s or professional license of the party that is not paying.  The difficulty with this is that it often impedes or prevents that person from working, which just compounds the problem of nonpayment.

 

If you are owed significant arrears from a court ordered child support or spousal maintenance award and your ex-spouse or ex-partner has a retirement account, ask your family law attorney about using a QDRO to collect what is owed to you.