Jennifer R. Lewis Kannegieter

Child Custody

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But My Child Wants To Live With Me

After a divorce is final and the custody arrangements are made, a child may find himself unhappy and wish to move in with the noncustodial parent. Of course, the noncustodial parent may be sympathetic to the child’s wishes and move for a change in custody. However, there are several hurdles that the moving parent must overcome in order to be successful in this motion. The child’s wishes alone will not be enough for the court to grant the change.
First, in an affidavit, the parent must relate facts that if true, would be sufficient to warrant a modification of custody.  Custody may be modified based upon agreement of the parties, integration, or endangerment. Second, at an evidentiary hearing, they must establish the truth of the facts asserted in the affidavit. There are four main elements that the noncustodial parent must establish in their affidavit and prove at the evidentiary hearing for a modification based upon endangerment. These elements are:
  1. A change in the circumstances of the child or custodian;
  2. That a modification would serve the best interests of the child;
  3. That the child’s present environment endangers her physical or emotional health or emotional development; and
  4. That the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change.
The change in circumstances must be significant and must have occurred since the original custody order; it cannot be a continuation of conditions existing prior to the order. The best interests of the child are determined according to the factors listed in Minn.Stat. § 518.17 (2009). Endangerment requires a showing of a “significant degree of danger,” but the danger may be purely to emotional development. The balance of harms may sometimes be implicit in the other factors.
In Minnesota, the wishes of a child are taken into account when determining modification of custody. However preferences alone do not provide sufficient evidence of endangerment to mandate a hearing. The moving party must have specific, credible evidence, not vague, conclusory statements, to show child endangerment. The party must allege an actual adverse affect on the child’s emotional health or development. Allegations of emotional abuse should be specific to rise to the level that may constitute sufficient endangerment. An alleged single incident of borderline abuse or neglect has been held not to constitute sufficient endangerment to warrant a custody modification.
Evidence sufficient to show endangerment can include that an older teenage child (1) has strong preferences to live with the non-custodial parent; (2) has relocated himself or herself to the non-custodial parent’s home; and (3) has evidence of distress while living with the custodial parent as shown by school problems.
Minnesota law rests on a presumption that stability of custody is in a child’s best interests. In cases involving teenagers’ preferences, Minnesota has generally endorsed the child’s preference when the child sought to remain in his or her present living arrangement or to return to a previous long-term custodial arrangement. Where a child has never resided for any length of time with a noncustodial parent and preference is the grounds for the transfer, there must be such severe endangerment as a result of the current custody that the other arrangement would present less risk.
A child’s choice may be found foolish if there are objectionable influences such as undue influence by the noncustodial parent or unfounded beliefs by the child as to that parent’s leniency. However, the possibility of objectionable influences does little to diminish the weight of an older teenaged child’s preference.
A child’s preference is only one factor among many that a court uses to assess the best interests of a child. Although it is important to consider the wishes of a child of suitable age, it is seldom in a child’s best interest to place upon him the entire burden of such a difficult decision as custody. There must be actual evidence of a current danger to the child so as to require an evidentiary hearing.
So before a noncustodial parent runs out to file an affidavit, the situation must be examined from all angles to ensure that there is endangerment to the child beyond merely the child’s wishes and that a move would truly be in the best interest of the child.
Sources:
Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App., 1997).
Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App., 1991).
Minn.Stat. § 518.17 (2009).

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Education and Informal Custody Arrangements

When a parent or legal guardian moves out of the school district where their child attends school, but wishes to keep the child in the same school, the parent may work out an informal arrangement for the child to live with a relative or family friend in the school district. However, this informal arrangement can cause problems.  Because the parent or legal guardian resides in another district, the child may still be considered a nonresident and be subjected to nonresident tuition fees, which can cost over $7,000 per year.
In Minnesota, the child’s parent or guardian must receive the approval of the school board from both the resident and the nonresident districts if they want their child to continue school in the district that is now the nonresident one. However, if the child is in 11th or 12th grade when the parent or guardian moves to another district, the child can continue enrollment in the nonresident district with only the approval of that district’s school board.
In other states, there have been instances where families had to fight to keep their children in the district tuition free.  Wisconsin addressed this issue way back in 1889 and adopted what is known as the “Thayer Rule,” holding that a child who lives in a district for reasons other than school attendance can be considered a resident of the district and would not have to pay tuition to attend the public school.
Because parents often wish their child remain in the same school district throughout their education, and parents do not want to pay a nonresident tuition fee, the best proactive step that a parent or guardian can take in Minnesota is to contact each district’s school board and secure permission for the child to continue in the original school district. If they place the child with a relative who does not have legal custody, they may have to argue that their child resides in the district for reasons other than attending the particular school district. It is appropriate to be aware of your state’s statutes regarding residency in a school district before moving the child in with someone who is not that child’s legal guardian. Doing so may prevent a legal headache down the road.

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Custody Battles for Military Parents

For several military parents a deployment to serve their country can cost them dearly in a custody battle.  While parts of the Servicemembers Civil Relief Act applies to military child custody cases, granting more time for troops to respond and prohibiting judgments against parents while they are deployed, there has  been a movement for additional protections for military parents while they are deployed.  Leo Shane III has an in-depth article, Custody Battles Can Become Rude ‘Welcome Home’ for Military Parents on Stars and Stripes.

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Where have your kids started school?

The school year has just started.  Hopefully the decision as to where your children will be spending the school year has been made.  As more and more parents agree to a joint physical custody arrangement, disputes over what school the kids are going to increase.  When one parent has sole physical custody it is usually a given that the children will be attending school in the district where that parent lives.  But when parents have joint physical custody and the children spend significant time during the school week with both parents there is rarely any guidance on which school district the children will attend.

And when disputes arise, there is rarely a quick and easy resolution.  Most decrees require that the parties attend mediation prior to returning to court.  If mediation is unsuccesful, only then can you bring a motion in court asking the judge to decide which school your kid is going to.  It may take a few months just to get the court date, and the judge can take up to 90 days after the hearing to issue a decision.  Some parents use the services of a parenting time expediter, a neutral party who will first try to mediate disputes, but can then serve as an arbitrator and make a decision.

Unfortunately, very few parents are proactive in addressing this issue, which means the school year can start before the decision is made.  I have heard at least one story in where the child ends up spending half the time in one kindergarten class and half the time in another class and another district.  In addition to all of the other concerns about going to school in two different disctricts, the child was not meeting requirements for any kindergarten, which meant that the child would most likely be repeating kindergarten by the time the parents figured things out.  This issue is not limited to Minnesota parents, I came across this article Parents’ Procrastination In Custody Cases Crowds Family Court Documents in The Wichita Eagle by Ron Sylvester which indicates parents across the country face this problem.

There is a simple way to avoid making your child repeat kindergarten or letting a stranger decide where your kids go to school – talk about it with the other parent and make the decisions early!  If you already have a joint custody arrangement, start talking about where the kids will go to school at least a year before your child starts school or as soon as one parent moves from the current school district.  If you are just separating from the other parent and considering a joint physical custody arrangement, have the conversation about school districts during your negotiations.

In every case I have where the parties will have joint physical custody I ask about where the kids will be attending school.  When we have older children who have been going to the same school district for years, we may put in the court order that the children will remain at district _________.  When we have younger children, or are uncertain where the parties will be living, sometimes we designate one parent’s home as the home that will determine where the kids go to school.  Taking the time to discuss these issues ahead of time and put some guidance in the documents can prevent problems in the future.

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50/50 Custody Schedules – Are they really in the child’s best interests?

Stories on joint physical custody arrangements seem to be everywhere lately.  Many states and countries are moving towards some sort of presumption towards joint physical custody.  Joint schedules can work great for parents dedicated to working together for their children.  But in families where the parents are working against each other instead of with each other, joint custody may do more harm than good.  Here are just a few quotes from a couple recent articles.

From the Newsweek article Not Your Dad’s Divorce:

“To make it work, we’d have to live near each other for the next 13 years, until the youngest girl was off to college. It was a commitment not unlike marriage, and, given that feelings were still raw post-divorce, neither of us thought it would be easy.”

“Forcing uncooperative couples into a joint arrangement could end up creating more parental conflict, which most experts agree is the most damaging part of a divorce for kids.”

“The willingness of both parents to cooperate is the key factor in how kids adjust to a divorce. Nickelson reminds parents that they should start creating a collaborative relationship with an ex-spouse early on. “You’re not going to sign the child-custody agreement, whatever it is, and be done with your wife or husband. I tell my clients, if you’re lucky, you’ll be sitting next to them for graduations and marriages and all kinds of achievements, so learn to get along.””

From Matthew Fynes-Clinton’s article: Children Suffer When Law Splits Parenting Equally:

“My initial thought was, ‘They’ll realise (50-50 parenting orders) are a mistake in about 10 years time – and that they’ve screwed up a generation,”

“He says, ‘(My ex-wife) keeps saying to me our daughter can have one life in your household and another life in my household’. The child’s got this sort of split personality thing happening.”

“It’s about him and me. And it’s about control,” she says, concerned about the potential of such power plays to turn their daughter into a pawn.

She says the fundamental paradox with laws encouraging mutual parenting responsibility is the contrariness of the couples who seek judicial determination of their child custody wrestle.  “The legislation is written about parents who can do (equal time parenting),” she says, “and it’s applied to parents who can’t.”

McIntosh says substantial or equal-shared care can succeed where “self-selected” by mature, child-focused couples.  “But you need two sets of everything, co-operation, geographic proximity, family friendly work practices and people to be financially comfortable. On top of that, you need the emotional equipment for it.