Custody & Parenting Time

A neutral professional is a third party called upon by either the parties involved or the court in an attempt to resolve a family law dispute as efficiently as possible without unnecessary, expensive court litigation. There are a variety of neutral professionals that may be utilized for this purpose, including: guardians ad litem, parenting time expeditors, custody evaluators, parenting consultants and custody mediators.

According to Minnesota Statute 518.165, the court may appoint a guardian ad litem in any proceeding involving custody or parenting time of a minor child. The guardian ad litem’s job is to represent the best interests of the child and advise the court of those interests, including recommending specific custody and parenting time arrangements.

In disputes involving parenting time, a parenting time expeditor may be appointed by the court (either at the court’s discretion or upon the request of either party) to facilitate a resolution. Generally, the parenting time expeditor is authorized by the court to make a binding decision resolving the dispute.

During contested child custody proceedings, an investigation and report concerning the custodial arrangements for the child may be ordered at either the court’s discretion or at the request of one of the child’s parents. According to Minnesota Statute 518.167, the investigator, or custody evaluator, “may consult any person who may have information about the child and the potential custodial arrangements except for persons involved in mediation efforts between the parties.” This includes, with consent from the child’s parent, obtaining information about the child from medical, psychiatric or school personnel. The investigator’s subsequent report will include the investigator’s custodial recommendation and the reason(s) for the recommendation. This report, including the recommendation, may be used in court at the custody hearing.

Parents also may choose to utilize parenting consultants and/or custody mediators to help them resolve their differences amicably through negotiation. These trained professionals will facilitate the discussion between the parties, helping them reach agreements that are in the best interests of their child(ren). While the professionals may give recommendations to the parties, in the event that no agreement can be reached, they typically are not authorized to issue binding decisions.

Courts are increasingly utilizing the services of neutral professionals to help resolve family law disputes, and often depend on the professionals’ recommendations when rendering decisions. It is important for your case that you understand the roles and impact of such a professional. For more information on your Minnesota family dispute, contact Banas Family Law at (651) 361-8109.

A parent may not relocate a child across state lines without first obtaining permission from either the other parent or the court, unless the non-custodial parent has not been granted any parenting time under the child custody agreement.

According to Minnesota Statute 518.175, Subd. 3(a):

“The parent with whom the child resides shall not move the residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree. If the purpose of the move is to interfere with parenting time given to the other parent by the decree, the court shall not permit the child's residence to be moved to another state.”

Permission for relocation by the court will be based on the court’s determination of the child’s best interests as determined by such factors as the child’s relationship with the non-custodial parent, the child’s age and stage of development, the change in quality of life for both the custodial parent and the child as a result of the move, and the reason for relocation.

The parent requesting permission for relocation must prove the move is in the best interests of the child, unless the court finds evidence that the requesting parent has been the victim of domestic abuse at the hands of the other parent, in which case the parent opposing the move must prove that relocation is not in the best interests of the child.

Relocating within state lines is not subject to the same regulations as moving out of state. However, if the parents have joint physical custody, or the move would alter the court-ordered parenting time agreement, a modification order and/or court approval may be required.

For more information on out-of-state or in-state moves, contact Banas Family Law, P.A. at (651) 361-8109 now. 

Needs and circumstances change. When they do, a post-decree modification can realign court orders to match the interests of the parties and their new situations. Minnesota family law attorney Chris Banas assists clients in filing motions for the modification of child custody and parenting time agreements as well as child support and spousal maintenance orders.

Child Custody and Parenting Time Post-Decree Modifications.

When deciding issues involving a child, the court focuses on the “best interests” of that child. To ensure your child’s interests are thoroughly represented, you need to obtain the services of a qualified family law attorney.

Often, unless “the court finds that there is persistent and willful denial or interference with parenting time, or has reason to believe that the child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development” (Minnesota Statue 518.18(c)), there are time limitations imposed on when modifications may be filed and approved. Your attorney will assist you in determining whether you are eligible to file a modification.

Child Support or Spousal Maintenance Post-Decree Modifications.

When the financial circumstances of either party change, a modification of support is necessary. Orders involving how much, how long, and how often an obligor must pay an obligee are often based upon the obligor’s financial position and ability to pay, the obligee’s financial needs, and the income and expenses of both parties. A knowledgeable family law attorney can assist you in determining whether your situation warrants a modification, and will ensure that the court receives the necessary financial documentation.

To discuss your need for a Minnesota post-decree modification, contact Minneapolis family law attorney Chris Banas today. Call 651-361-8109 now.

De facto custodian.

(a) "De facto custodian" means an individual who has been the primary caretaker for a child who has, within the 24 months immediately preceding the filing of the petition, resided with the individual without a parent present and with a lack of demonstrated consistent participation by a parent for a period of:

(1) six months or more, which need not be consecutive, if the child is under three years of age; or

(2) one year or more, which need not be consecutive, if the child is three years of age or older.

(b) For purposes of the definition in this subdivision, any period of time after a legal proceeding has been commenced and filed must not be included in determining whether the child has resided with the individual for the required minimum period.

(c) For purposes of the definition in this subdivision, "lack of demonstrated consistent participation" by a parent means refusal or neglect to comply with the duties imposed upon the parent by the parent-child relationship, including, but not limited to, providing the child necessary food, clothing, shelter, health care, education, creating a nurturing and consistent relationship, and other care and control necessary for the child's physical, mental, or emotional health and development.

(d) "De facto custodian" does not include an individual who has a child placed in the individual's care:

(1) through a custody consent decree under section 257C.07;

(2) through a court order or voluntary placement agreement under chapter 260C; or

(3) for adoption under chapter 259.

(e) A standby custody designation under chapter 257B is not a designation of de facto custody unless that intent is indicated within the standby custody designation.

Interested third party.

(a) "Interested third party" means an individual who is not a de facto custodian but who can prove that at least one of the factors in section 257C.03, subdivision 7, paragraph (a), is met.

257C.03, subdivision 7, paragraph (a):

(a) To establish that an individual is an interested third party, the individual must:

(1) show by clear and convincing evidence that one of the following factors exist:

(i) the parent has abandoned, neglected, or otherwise exhibited disregard for the child's well-being to the extent that the child will be harmed by living with the parent;

(ii) placement of the child with the individual takes priority over preserving the day-to-day parent-child relationship because of the presence of physical or emotional danger to the child, or both; or

(iii) other extraordinary circumstances;

(2) prove by a preponderance of the evidence that it is in the best interests of the child to be in the custody of the interested third party; and

(3) show by clear and convincing evidence that granting the petition would not violate section 518.179, subdivision 1a.

(b) "Interested third party" does not include an individual who has a child placed in the individual's care:

(1) through a custody consent decree under section 257C.07;

(2) through a court order or voluntary placement under chapter 260C; or

(3) for adoption under chapter 259.

Best interests of a child.

(a) If two or more parties seek custody of a child, the court must consider and evaluate all relevant factors in determining the best interests of the child, including the following factors:

(1) the wishes of the party or parties as to custody;

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

(3) the child's primary caretaker;

(4) the intimacy of the relationship between each party and the child;

(5) 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;

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

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

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

(9) the mental and physical health of all individuals involved; except that a disability, as defined in section 363A.03, subdivision 12, 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;

(10) 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;

(11) the child's cultural background; and

(12) the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, subdivision 2, that has occurred between the parents or the parties.

(b) The court may not use one factor to the exclusion of all others. 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.

(c) The court must not give preference to a party over the de facto custodian or interested third party solely because the party is a parent of the child.

(d) The court must not prefer a parent over the de facto custodian or third party custodian solely on the basis of the gender of the parent, de facto custodian, or third party.

(e) The fact that the parents of the child are not or were never married to each other must not be determinative of the custody of the child.

(f) The court must consider evidence of a violation of section 609.507 in determining the best interests of the child.

(g) The court must not consider conduct of a proposed custodian that does not affect the custodian's relationship to the child.

(h) Section 518.619 applies to actions under this section.

To determine if your case meets the criteria for custody, please contact Minnesota family law attorney Chris Banas at 651-361-8109.

The source of referenced Minnesota Statutes is the Office of the Revisor of Statutes, State of Minnesota, Copyright 2008. All rights reserved.

Early Neutral Evaluation (ENE) is a short-term, confidential evaluative process designed to facilitate prompt dispute resolution in Hennepin County Family Court custody and parenting time (visitation) matters. The program, as offered through the Hennepin County Family Court, offers the evaluative impressions of experienced Hennepin County Family Court Services (FCS) staff to parties engaged in custody and parenting time disputes. Feedback is provided to parties and their Hennepin County divorce attorneys based on case presentations and a limited amount of information gathering. The ENE process is completed within one month.

1. At any point in the legal process, from the initial judicial management conference to a pretrial settlement conference, the judicial officer may refer parties and their attorneys to Hennepin County Family Court Services for an ENE.
2. A male/female ENE team of experienced FCS staff is assigned to the case.
3. Hennepin County divorce attorneys and parties meet with the ENE team within one week after the assignment. Each attorney or pro se party is asked to present the important issues in the case. Unless it is necessary to gather additional information, the ENE team provides immediate feedback about each party's case. Settlement possibilities are discussed and areas needing further scrutiny are identified.
4. The ENE team may gather additional information as necessary and the team may interview parties, interview child(ren), or gather limited collateral data.
5. The attorneys and parties may meet a second time with the ENE team to hear the team's assessment and recommendations. Settlement options for full and partial agreements are discussed. If the case does not settle, the team identifies critical issues that may need additional study.
6. If a full or partial settlement is reached, a copy of the agreement is sent to the judicial officer. If a full agreement is not reached, a report is made to the judicial officer by the ENE team regarding partial agreements that have been reached. The report may be written or oral. The ENE team members may not be called as a witness with respect to the information obtained or the recommendations made during the ENE process.  In addition to reporting full and partial settlements, the ENE team members may communicate with the judicial officer for the limited purpose of facilitating case management. For example, if one fact issue stands in the way of settlement, such as a chemical health issue, the ENE team may report the disputed issue to the judicial officer for case management purposes. Armed with such information, the judicial officer may opt for a chemical health assessment rather than a full-fledged custody evaluation.
7. If the case does not settle, the judicial officer consults with the parties and their attorneys to decide the next step, which may be mediation, an expedited evaluation of the remaining issues, or a full custody evaluation.

If you have questions regarding Early Neutral Evaluation in Minnesota, please contact Minnesota divorce lawyer Chris Banas: 651-361-8109.

If there is a dispute in Minnesota over custody and parenting time, the court will likely order the parties to undergo some sort of "evaluation." "Evaluation" is a fluid term, and can mean a variety of things. To understand the "evaluation" itself and the process you will have to undertake, you must understand the different types of players who may be assigned to your case. The most commons types of "evaluations" and the professionals who conduct them are set forth below. Your particular case may include only one of these individuals or many.

In custody and parenting time disputes, the court may appoint a Minnesota Guardian Ad Litem to your case. The guardian, also known as a "GAL," acts on behalf of the children. Generally, Guardians Ad Litem are appointed when there are allegations of maltreatment or abuse, either emotional or physical.

The main responsibilities of the Gaurdian Ad Litem in Minnesota are:

My ex-girlfriend will not allow me to see my son. What can I do?

This is a common question, and I am often giving the answer of: Nothing, until you go to court.

The grim reality is this: Fathers who have children that were born out of wedlock are at a legal disadvantage, unless and until they assert their rights in a court of law. When a child is born out of wedlock, the mother automatically has sole legal and sole physical custody of that child. Further, the father has no right to parenting time (visitation) unless the mother agrees. In addition, child support is independent of custody and parenting time. This means that a child support order may issue, without any reference to custody or parenting time.

Child custody and parenting time evaluations, whether conducted by a private evaluator or court services, usually take anywhere from 3 to 6 months to complete. Once the evaluation is complete, your attorney will be given notice by receiving a copy of the evaluation. In some circumstances (which are rare), the evaluator will prefer to have a meeting with the parties and their attorneys to "review" his or her recommendations prior to the release of the written report. Most commonly, the report will be mailed to the parties' attorneys. [1]