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Child Custody and Visitation
We live in a very mobile society. People often move from one state to another because of work, to find a better job, for a new relationship, or to relocate closer to extended family. This article is about what happens to parenting-time plans and custody agreements when one parent wants to move out of state.
For adoptions in Minnesota, adoption lawyers can represent both adoptive-parents and birth parents in legal adoption proceedings in Minnesota. Sometimes adoption agencies are involved and sometimes they are not required. A law firm represents clients in both direct-placement adoptions and step-parent or relative adoptions.
A recurring problem in many families is a dispute over where the minor child(ren) will attend school. If you have sole legal custody, you may decide this on your own. But if like most parents you have joint legal custody, then the choice of school is something that must be agreed upon, or otherwise submitted to the Court or Alternative Dispute Resolution for a determination.
What's the Best Approach to a Social Early Neutral Evaluation in a Minnesota Divorce or Child Custody Case?
The Social Early Neutral Evaluation, or SENE, was started in Hennepin County several years ago, and has since been adopted in Ramsey County, and increasingly in other counties in the State of Minnesota. It has become the norm in most contested custody and parenting time cases.
It depends on how bad it is. Half of the divorce cases out there involve one or the other party being on anti-depressant medications, so that in and of itself wont matter much. It really depends on how severe the mental illness is, and how it affects your parenting.
It is often the case that stepchildren form close bonds with their stepparent. Unfortunately, in divorce proceedings, the biological parents don’t always let the stepparent maintain contact after the divorce, even where this is very hurtful to the stepchildren.
Use of Parenting Consultants has become very common in divorce cases, usually in the post-decree setting, as an efficient and cost-effective way to deal with ongoing post-decree issues between the parties. Essentially, the Parenting Consultant takes the place of the judge, and is empowered to make binding decisions to resolve disputes over the children, such as legal custody disputes (like choice of school), as well as parenting time modifications and other parenting decisions.
Generally speaking, the courts expect that grandparents will see their grandchildren during their own child’s parenting time. Unfortunately, there are situations where this doesnt work, either because the grandparents own child is dead or absent, or has had his or her own parenting time severely restricted, or because the grandparents are estranged from their own child, and therefore neither parent is willing to allow visitation.
We live in a very mobile society. People often move from one state to another because of work, to find a better job, for a new relationship, or to relocate closer to extended family. This article is about what happens to parenting-time plans and custody agreements when one parent wants to move out of state. If you anticipate that you or your spouse may want to move out of state after your divorce is finalized, an attorney can help you prepare a strategy so that your divorce decree anticipates this potential reality. Understanding the law is important to protect your interests in moving or to protect your interests in keeping your children in close proximity to where you live.
Minnesota statutes provide that: In contested custody proceedings the court may order an investigation and report concerning custodial arrangements for the child. This is referred to as a custody evaluation. Although not mandatory, it is almost always ordered in contested custody cases, with rare exception.
In Minnesota, the determination of custody for children born out of wedlock is no different than the determination of custody for children of marriage - both are decided pursuant to the best interest of the child standard set forth in Minnesota Statute section 518.17.
Legal custody is defined as the right to determine the child’s upbringing, including education, health care, and religious training. Most of the time, parties to a divorce are awarded joint legal custody, which means that both parents have equal rights and responsibilities, including the right to participate in major decisions determining the childs upbringing, including education, health care, and religious training.
In all proceedings for dissolution or legal separation, subsequent to the commencement of the proceeding and continuing thereafter during the minority of the child, the court shall, upon the request of either parent, grant such rights of parenting time on behalf of the child and noncustodial parent as will enable the child and the noncustodial parent to maintain a child to parent relationship that will be in the best interests of the child.
Regardless of which parent has custody, both parents have a right to access and to receive copies of school, medical, dental, religious training and other important records and information about the minor children.
In Minnesota, there is no particular age at which a child gets to decide which parent he wants to live with. Generally, the older the child, the more weight the child’s preference carries, whether in the initial custody determination or in the context of a motion to modify custody.
Legally, there can be no discrimination based on the sex of the parent. For a father willing to bear the time and expense of the contest, chances for custody are more or less equal to those of the mother, all else being equal. Having said that, I do think there is some lingering bias, even though judges and custody evaluators and guardians ad litem will always deny it. Often I do not believe it even occurs on a conscious level. Yet there is a gut feeling one gets, representing a father, that the job is just a little more difficult.
Generally speaking, no Court Order is required for the sole physical custodian to move the residence of children within the state. However, if the move as a practical matter would necessitate a change in the court-ordered parenting time schedule, or if the parties have joint legal custody and the move would involve a change of schools, then it is wise to bring a motion at or before the time of the move.
For married parties with children born during the marriage, both parties have joint legal and physical custody until the Court orders otherwise. Thus, either parent has the right to take the children, and the other parent has the right to take them back, and so forth. This can lead to a lot of game-playing and tugs-o-war which are obviously harmful to the children.
Grandparents often envision their golden years spent by happily caring for and treating their grandchildren. In recent years, as a symptom of our skyrocketing divorce rates, much litigation has occurred when grandparents are prevented from seeing their grandchildren.
Divorce rates continue to rise and our world grows smaller with each leap in technology making international travel commonplace. With these societal changes, a dramatic increase has been seen in child abductions and child kidnappings by custodial and non-custodial parents.
A parent that is not awarded physical custody has a visitation schedule. Often when a parent is awarded visitation rather than physical custody, they feel as if they are being characterized as an inferior parent.
The Recognition of Parentage (ROP) is a legal document that establishes a man as the father of a child when the parents are not married. Both parents must sign this document before a Notary Public. Parents may execute this document at the time the child is born or afterwards in order to have the father recognized as the legal parent.
Custody is an emotionally laden term. To parties in a divorce, it often takes on the unintended meanings. Many parents believe that if they are not awarded custody, that they have somehow been determined to be an inferior parent.
As in many areas of family law, the standard applied by the Court in making an initial award of physical custody is the so-called best interest of the child’s standard. This standard requires findings by the Court with respect to all relevant factors.
In cases where the issue of custody is contested, there is typically an initial hearing where the Court decides issues of custody, visitation, child support, spousal maintenance, occupancy of the homestead, etc. on a temporary basis, pending issuance of the final Judgment & Decree or Divorce which can be several months or even a year or more in contested custody cases.
A Court may not change physical custody from one parent to the other unless the change is in the best interests of the child.
Legal custody is defined as "the right to determine the child’s upbringing, including education, health care, and religious training." Most of the time, parties to a divorce are awarded joint legal custody, which means that "both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child’s upbringing, including education, health care, and religious training."
A related statute provides that a custody order may not be modified - other than by consent - unless the current custodial arrangement endangers the child, and the harm likely to be caused by a change is outweighed by the advantage of the change to the child. This statute has been held to create an implicit presumption that removal to another state by the custodial parent is to be permitted.
Physical custody is defined as the routine daily care and control and the residence of the child. In practical terms, it generally refers to who maintains the home base or primary residence of the children, and who has the children most of the time, particularly during school. Like legal custody, physical custody can be sole or joint.
As of January 1st, 2001, Minnesota litigants have had the option of stipulating to a Parenting Plan in lieu of a traditional custody award. A major goal of this legislation was to help parents avoid getting bogged down in arguments over the custody label. Unfortunately, the legislation hasn’t entirely lived up to its promise.
In a direct-placement adoption, a birth mother has selected potential adoptive parents to adopt her child. In step-parent adoptions, a step-parent wishes to adopt his or her stepchild.
Marital property, which is all assets and debts acquired during the marriage, is divided equitably, in a manner the Minnesota court believes is fair. Separate property is not considered marital property, and it includes property acquired before marriage, gifts and inheritances. The increase in value in this property is also separate property.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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