New Law: In the spring of 2015, the Minnesota legislature made changes to family laws. It made these changes to address problems that practitioners recognized in the practice of family law.

Under Minnesota Statute §518.175, subdivision 6, courts appeared to lack the authority to grant make up parenting time in appropriate cases due to the way the statute used the word denial. The statute’s use of ‘denial’ seemed to contemplate an intentional denial of parenting time. A related issue was that the courts did not seem to seriously penalize parties for repeated and intentional denials of parenting time.

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Social Science Update: How does shared overnight care after separation interact with complex developmental or family circumstances to influence children’s psychological and emotional outcomes?

In 2011, social scientists conducted a study regarding post-separation parenting arrangements that involved ongoing parental conflict. This study looked at mediation participants with high conflict and high psychological hostility toward the other parent. The study looked at shared care arrangements in which the children spent 35% of overnights with each parent by looking at four groups: continuous primary care, continuous shared care, changed arrangements, and rare to no contact. This study involved 133 families with 260 children and was based upon research interviews at four points in time with mothers, fathers, and children with the average age of the children being 13.

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New Law: In the spring of 2015, the Minnesota legislature made changes to family laws. It made these changes to address problems that practitioners recognized in the practice of family law.

Under the previous law, a problem arose regarding income tax dependency exemptions because there was a lack of specific statutory authority for allocating exemptions between parents. There was also a lack of standards to use when allocating dependency exemptions.

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Social Science Update: How does intimate partner violence and other family violence affect children?

In 2011, social scientists did a study to examine children’s exposure to intimate partner violence and other family violence. The study focused on psychological violence between parents, including threats and displaced aggression such as punching a wall, and violence involving other family members, such as a parent or child hitting a child. The study looked at the past year and lifetimes of 4,500 children in four different age groups: 0-5, 6-9, 10-13, and 14-17.

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Best Interests of the Child -- the 13 factors explained

"What are the 13 factors?"

"What does 'best interest of the child' mean?"

"What is it that the courts look at to make custody and parenting time decisions?"

These are common questions and some of the most pressing questions I get. As a primer, review the following. From there let me know what other questions you have -- for each circumstance there are bound to be more questions as each scenario is different. -ML

 

The Minnesota statutes involving custody, parenting time, joint physical custody, and grandparent/third party custody reference the “Best Interests of the Child”. This phrase is set forth in Subdivision 1(a) of Minn. Stat §518.17 as:

"The best interests of the child" means all relevant factors to be considered and evaluated by the court including:

a)     the wishes of the party or parties as to custody;

b)    the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;

c)     the child's primary caretaker;

d)    the intimacy of the relationship between each party and the child;

e)     the interaction and interrelationship of the child with a party or parties, siblings, and any other person who may significantly affect the child's best interests;

f)     the child's adjustment to home, school, and community;

g)     the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

h)    the permanence, as a family unit, of the existing or proposed custodial home;

i)      the mental and physical health of all individuals involved; except that a disability of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interests of the child;

j)      the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;

k)    the child's cultural background; and

l)      the effect on the child of the actions of an abuser, if related to domestic abuse that has occurred between the parents or the parties.

m)  the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child, if no related to domestic abuse that has occurred between the parents or the parties.

The statute continues on to state that the court may not use one factor to the exclusion of all others.

Further the primary caretaker factor may not be used as a presumption in determining the best interests of the child.

The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child. If the court does not make complete findings, there are means to demand that the court amend its order to demonstrate how the facts support its conclusions.

Whether your concern for the best interests of your children has arisen out of a custody, paternity, divorce, or other case, Atticus Family Law in Stillwater, Minnesota, can help you demonstrate to the court how the best interests of your children will be best served. Please let us know how we can be of service.

The Affordable Care Act for Separated Parents

The 2014 implementation of the Affordable Care Act is a significant change of our laws. The Act will have particular effects on the healthcare expenses and relationships of parents who are no longer together yet share the support responsibilities of their children.

Starting in 2014 this new law creates both a risk and an opportunity for these parents. Parents who are well-advised, think through the consequences and are proactive in addressing potential problems will suffer less stress and save money.

Background
Most separated parents have the rights and responsibilities for their children governed by a divorce decree, custody order, or child support order. Each of these court orders specify which parent is to provide the medical insurance for the parents’ shared children and how to divide healthcare expenses. The healthcare specifications in court orders are very important as parents spend thousands of dollars each year for health insurance premiums, deductibles, co-pays, and non-covered medical expenses.

Prior to the Affordable Care Act, the options for medical insurance were usually limited to the offerings of employers of shared parents and the state’s Medical Assistance program. When not cost prohibitive, private medical insurance plans were used by the self-employed.

In October 2013 the state’s healthcare exchange opened, permitting parents to chose from a variety of private medical insurance plans offered by many companies. Under the Affordable Care Act these plans will no longer be so cost prohibitive but rather they will be “Affordable.”

The trade off  for the lower rates provided under the Act is that all citizens will be mandated to have medical insurance. The maintenance of a policy will be proved each year as a part of each person’s federal tax returns. Those who cannot prove they had medical insurance the prior year will incur a financial penalty at tax time for noncompliance.

The Risks
The difficulty some separated parents may encounter comes from court orders where the custodial parent is not the one whose medical insurance plan covers the children.

Under the Act the parent who claims the dependency exemption for the minor children is the parent whom the IRS will look to for proof that those children were medically insured during the prior year. Thus if the custodial parent is the parent who claims the children on their taxes (as is the majority of the cases either because the court order was silent on the issue or the exemption was assigned by the court order to the custodial parent), they will have to have the other parent provide them the documentation of coverage.

For some parents this type of communication and cooperation will be problematic and will require a court order that specifies a deadline for the provision of these documents. For other parents there will be unfortunate surprises when it is revealed that the coverage did not exist or was dropped. In high-conflict relationships between separated parents the issues of medical insurance coverage and tax penalties will likely drive them back to court.

The Opportunity
Separated parents have a couple of opportunities under the Act to significantly reduce the amount of money they each pay for medical insurance for the children.

First of all, separated parents will now have more medical insurance plans available to insure their children. No longer will they be limited to just what their employers offer; the exchange will offer more plans of comparable coverage at lower premiums. Admittedly, the sharing of premiums by some employers will still leave those plans to be the best options for some parents, but the market option exists for many whose employers’ offerings leave much to be desired.

Secondly, there are tax credits, depending on family size and income levels, available to offset the expense of private plans. There are also income-based subsidies to reduce out-of-pocket costs such as co-pays.

These tax credits will increase insurance options for many separated parents. Instead of having the higher earner provide the insurance because it was available through their employer, many separated parents will find that they can have the same coverage through the lower earning parent’s purchase of a private plan once the tax credit is taken into account.

In order to take advantage of these opportunities separated parents will need to work together and with both a CPA and an attorney so that the changes can be made. The amount of money that parents spend on healthcare is so considerable that there is reason to be excited by the savings that may come from these opportunities.

Conclusion
For these health insurance matters, as with many of the legal matters regarding the children of separated parents, it is wise for parents to each do their homework to know as much as they can. It is also good for them to communicate with each other to share what they learn so they can effectively co-parent. And with these changes to our healthcare that go into effect in 2014, it will also be wise for parents to speak with their attorneys and CPAs as soon as any issues arise. Effective communication will go a long way toward minimizing the risk and maximizing the opportunities of the Affordable Care Act.

Custody versus Parenting Time

Many people are going to read the title of this blog entry and wonder:  what do you mean custody versus parenting time?  I want both “custody” and “parenting time”.  I phrase it like this to point out the contradiction that parent-litigants face in the choice of the right words on the decree/paternity order versus more time with their children. Legal custody can be assigned solely to either parent or jointly to both parents. It just encompasses with the authority to make decisions for the minor child.  It is often times does not receive much attention by parents as they prioritize physical custody.

Physical custody is defined by the Minnesota Legislature as the 'routine daily care and control of the minor child'.  Some people subscribe to the belief that the distinction between the two (2) types of custody was just a chauvinistic attempt to give fathers greater rights.  The historical belief is that in the 1970's and 1980’s the male dominated State Legislature had received enough complaints that mothers were always getting “custody” of the children.

To remedy the complaints the Legislature created two (2) types of custody:  legal and physical custody.  In doing so they gave a great definition to legal custody and they lazily assigned physical custody with this “routine and daily care and control” definition.  Contrary to the experience of every sole physical custody order that has been entered since then, certainly no one expects a mother with sole physical custody to be making sure that the children are brushing their teeth and going to bed on time and otherwise 'caring' for them when they are at their father’s house for a weekend.  As such the definition is counter intuitive.

Nevertheless getting physical custody is often times what divorcing parties are primarily concerned with.  Yet they often times do so to the neglect parenting time. Parenting time is the schedule that is set forth as to when the children should be spending time with each parent.  It is often times segmented by weekdays, weekends, holidays, summer breaks, and other key days (such as birthdays).

Two recent cases in the Minnesota Court Appeals demonstrates the counter intuitive nature of the custody designation.  One is a father who is appealing in the award sole physical custody to the mother even though he has 50% of the parenting time.  The second is a mother appealing the Court’s award of joint physical custody to both parents even though the father was only granted 10% of the overnights each month as parenting time. In this circumstance, the parties are disregarding the time they were awarded with their children in appealing the custody label ordered by the District Court.

There are some valid arguments that other attorneys have in regards to the legal effects of joint physical versus sole physical custody including but not limited to the factual grounds necessary to modify either one.  But there are reciprocally other arguments to suggest that their concerns are moot in light of the likelihood that the facts that require a modification of custody are going to require entirely a new parenting time schedule with it too.  Nevertheless the facts of each given case are going to govern whether or not sole physical custody is going to need to be sought.  Further it is for each client to sit down with their attorney to review the entire case and determine what legal rights are most important as it relates to their children’s best interests.

Consider this family law dilemma:

Husband and wife separate at the same time they have their house foreclosed upon.  They continue to share the children with each spending equal time with the children. Though each parent has now moved into a home in a school district different that the children’s current district, the children are kept in the same school for the rest of that schoolyear.  By mid-summer the parties have established their own households with contacts with their extended family, significant others, with differing neighborhoods and in different school districts.  Even if they agree upon joint physical custody, which parent should be deemed to host the primary residence of the children for the sake of enrolling them in that parent’s school district?  Further remember that though the parties have been sharing the children they did get divorced for a reason, which includes poor communication and the inability to agree upon issues amicably.  It is cases like this one that I have been able to represent one of the parties and assistant them in not only attempting to find an agreeable resolution but also seeking a favorable Court Order from a judge that will serve my client and the client’s children’s interests.