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Minnesota Child Custody: I am Getting Divorced. How Does a Court Determine Child Custody?

The "best interests of the child" govern child custody decisions in family court. There are 13 different factors the court must analyze when making their determination of what custody arrangement will be in the child's best interest. The court must consider all factors in making their decision.

The 13 best interest factors are found in Minn. Stat. § 518.17, subd. 1. They are:

  1. The wishes of the child's parent or parents as to custody;
  2. The reasonable preferences 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 parent and the child;
  5. The interaction and interrelationship of the child with a parent or parents, 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 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, 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 interest 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;
  12. The effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and
  13. Except in case in which a finding of domestic abuse as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

Joint Custody
If parents wish to have joint custody of their child; the court will also consider the following factors in Minn. Stat. § 518.17, subd. 2, in addition to the 13 best interest factors:

a) The ability of parents to cooperate in the rearing of their children;
b) Methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods;
c) Whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and
d) Whether domestic abuse, as defined in section 518B.01, has occurred between the parents.

Legal Custody
Legal custody means the right to determine the child's upbringing, including education, health care, and religious training. Minn. Stat. § 518.003, subd. 3(a)

Joint Legal Custody
Joint legal custody 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. Minn. Stat. § 518.003, subd. 3(b)

Physical Custody and Residence
Physical custody and residence means the routine daily care and control and the residence of the child. Minn. Stat. § 518.003, subd. 3(c)

Joint Physical Custody
Joint physical custody means the routine daily care and control and the residence of the child is structured between the parties. Minn. Stat. § 518.003, subd. 3(d)

Rebuttable Presumptions
There is a presumption that joint legal custody is in the best interests of the child. However, if domestic abuse as defined in Minn. Stat. 518B.01 has occurred between the parents of the child, then joint legal custody or joint physical custody of the child is presumed NOT to be in the best interests of the child. Each of these presumptions may be overcome if a party can prove that the presumption is not in the child's best interest. Minn. Stat. § 517, subd. 2

HOW MUCH DOES IT COST TO GET A DIVORCE? HOW LONG DOES IT TAKE?

How much does it cost to get a divorce?  How long does the process take?  These are two of the most popular questions we are asked when someone is seeking a divorce.

The cost of a divorce will vary based on the complexity of your case.  Potentially, there are the following issues to resolve in a divorce:  

  • Legal custody of minor children
  • Physical custody of minor children
  • Parenting time schedules
  • Child support
  • Spousal maintenance
  • Asset allocation
  • Debt division
  • Division of personal property
  • Division of retirement accounts
  • Marital v. non-marital property claims
  • Division of a business

The more issues you and your spouse agree on at the beginning of the process, the less expensive your divorce can be, relatively speaking, since your attorneys will not have to negotiate those issues.  

That being said, we realize that not all situations can be resolved so amicably.  In those situations, we are happy to provide you with suggestions on how you can help control your costs.  

The duration of your case again can vary based on the number of issues above that need to be resolved.  In situations where the parties are in agreement on all or most of the issues you can figure about 60 days if no hearing is required, or closer to 90 days if a hearing is required.  

Of course there are those cases that may take a couple of years or more to become resolved, but a majority of cases are usually completed in 6 - 9 months.  

 

Employee Handbooks: Necessity or Overkill?

 Employee Handbooks:  Necessity or Overkill?

 As a growing business, the employer’s group of employees  inevitably grows too.  This growth in human capital comes with some decisions for the boss:

1)      How closely will we supervise the group of employees;

2)      What policies must we legally have in place, which policies are helpful but not necessarily legally required?

3)      Do we really need policies at all -- won’t that just stifle the creativity of the group?

A workplace without at least a few policies is flirting with risk. Having an employee handbook is also a great way to introduce the culture, vision, and mission of the company. It sets out, in one resource, the expectations of behavior from all levels of workers.  It communicates to each employee that they are valued and that there are “rules” that the employer will require of all employees.

The bare bones of any employee handbook should contain policies related to:

Employment at Will – reiterate to the employee that they can quit anytime for any reason, and the employer can let the employee go at any time so long as it is not for any illegal purpose.

Equal Employment Opportunity Policy – discuss discrimination, anti-harassment, the Americans with Disabilities Act,

Leave Policies – Discuss paid time off, sick time, holidays, bereavement, voting, family medical leaves (state and federal), parental leave, jury duty, bone marrow and organ donation.

Employee Benefits and Eligibility for Benefits:  Health, Dental, Life Insurance, Long Term Disability, Short- Term Disability, Retirement plan.

Workplace Policies: Attendance, Drug and Alcohol use, Violence in the Workplace, Accidents and Emergencies, E-mail and Internet Policies, Use of Employer Property, Expectation to Right to Privacy, Appearance, Discipline.

Termination of Employment: Voluntary, Involuntary, Exit Interview, COBRA.

And most important, if you have a handbook you MUST have an employee acknowledgment presented to, and signed by, the employee.  This acknowledgment is the employees confirmation that they understand the handbook is not a contract which the employer is bound to follow, and they that understand employment is “at will.” 

If your company has been operating without a handbook, now is the time to put this necessary document into place. 

By: Kristi Weikel, Attorney

Frequently Asked Estate Planning Questons

If I have a Minnesota will, does my estate avoid probate?

No.  A will does not avoid probate.  Instead, your will tells the probate court how your probate assets shall pass upon your death.

What are “probate assets” and “non probate assets”?

Probate assets include personal property and titled assets that are either held in the Decedent’s name alone, or held with another person in a form of ownership other than a joint tenancy with a right of survivorship. 

In contrast to probate assets, there are also “non probate assets.”  Non probate assets are assets that will pass to your beneficiaries via a beneficiary designation.  Examples include life insurance, IRAs, 401Ks, Certificates of Deposit (CDs), and transfer on death deeds (TODDs). 

It is very important to verify, and keep current, your beneficiary designations.  When a beneficiary is named on a non probate asset, like life insurance, your life insurance will pass to the named beneficiary without looking to your will to see how it should be passed.   Many people are surprised to see that years after a divorce, they may still have their ex-spouse named as a beneficiary on a non probate asset. 

Can I name a beneficiary on my checking and savings accounts?

Yes.  A payable on death (POD) beneficiary can be named on your checking and savings accounts.  You should contact your bank to have this established. 

Can probate be avoided?

Yes.  It is possible for a decedent’s estate to avoid probate if their probate assets do not include real estate and the probate assets are under $50,000.00. 

There are additional estate planning methods that can avoid or minimize the need for a probate, but those methods go beyond the scope of this post. 

What does it mean to own Minnesota real property as a “joint tenant”?

Spouses, for example, commonly own their homes as joint tenants.  A joint tenancy has a right of survivorship attached to it, meaning that when the first spouse passes away, the surviving spouse will become the sole owner of the real property (once an affidavit of identity and survivorship is filed with the appropriate county) without the need for the real property to go through the probate process. 

What does it mean to own Minnesota real property as “tenants in common”?

Tenants in common do not have survivorship rights.  For example, if two people own a parcel of real property together, each titled owner is able to devise their interest to whomever they wish via a will or TODD, or, if no estate planning has been done, according to the laws of Minnesota intestate succession. 

For more information on Minnesota estate planning, contact Attorney Jill Ide at 763-323-7676 or at jillide@weikellaw.com.

 

Do I need a Health Care Directive or Power of Attorney?

Have you ever wondered how your day-to-day financial affairs would be handled if you were unable to take care of them yourself?  Who would make your healthcare decisions for you if you were unable to speak for yourself?  The answer is “no one” (without court involvement) if you do not plan for your incapacity. 

Planning for incapacity is an important part of the Minnesota estate planning process.  A Minnesota Durable Power of Attorney and Minnesota Health Care Directive are two important incapacity planning documents. 

A Minnesota Durable Power of Attorney allows you to name an Attorney-in-Fact who will make personal and financial decisions on your behalf if you are unable to act for yourself.  You can choose to grant the Attorney-in-Fact a broad range of authority over your affairs, or choose to be more restrictive.  Either way, the Power of Attorney gives a great deal of power to the Attorney-in-Fact so you want to be certain you name a trustworthy person to act on your behalf.  In addition, the Durable Power of Attorney is a valid document once it is signed, so you want to be sure to keep it in a safe place.

A Minnesota Health Care Directive gives you the ability to nominate a Health Care Agent to make your health care decisions for you in the event you cannot speak or decide for yourself.  The Health Care Directive also documents any wishes you have with regard to your health care.  For example, if you are in a terminal condition or persistent vegetative state, do you wish to be kept alive by artificial means or heroic measures?  Do you wish to receive experiment treatments or medications?  Do you wish to be an organ donor?  What are your religious beliefs?  Do you prefer cremation or burial? 

Your Health Care Directive can be as descriptive or broad as you would like it to be.  The more information you can provide in your Health Care Directive, the less stressful it can be for your named health care agent to carry out your wishes. 

Regardless of how descriptive your Health Care Directive might be, it is a good idea to discuss the provisions of your Health Care Directive with your named health care agent.  That way, if your health care agent ever does need to act on your behalf, they can have greater confidence knowing that they are making decisions you would have wanted.  

 If you have not planned for incapacity and you do become incapacitated, your loved ones may need to petition the court for the appointment of a guardian and/or conservator for you in order to have the ability to manage your health care and finances.  As with any court process, the guardianship and/or conservatorship process can be expensive and time consuming. 

For more information on incapacity planning, a Minnesota Health Care Directive, or a Minnesota Durable Power of Attorney, contact Attorney Jill Ide at 763-323-7676 or jillide@weikellaw.com.