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) 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.
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.
Undergoing a family law proceeding is hard enough. And then there’s the legal lingo.
What’s the difference between a “legal separation” and a “divorce”?
What’s the difference between “joint legal custody” and “joint physical custody”?
At a time when you already have a lot to think about, trying to understand complicated legal terms is the last thing you want to do.
Continue reading “Understanding Legal Terms”