Judges often tell litigants not to argue over the physical custody “label.” They often say that it is not important. Years ago, the physical custody label had a major impact on the issue of child support and out of state moves. Because of statutory changes, that is no longer the case at all. There is debate in the bar as to what if any legal impact the physical custody label has now that those two considerations have been removed.
The information contained on this page is not to be considered legal advice. This website is not a substitute for a lawyer and a lawyer should always be consulted in regards to any legal matters. Divorce Source, Inc. is also not a referral service and does not endorse or recommend any third party individuals, companies, and/or services. Divorce Source, Inc. has made no judgment as to the qualifications, expertise or credentials of any participating professionals. Read our Terms & Conditions.
Typically the SENE will involve both parties, both attorneys, and two court-appointed custody evaluators. Usually three hours is blocked for a session. During the session, each party (and his or her attorney) is given the opportunity to explain what they would like for a custody and parenting time arrangement, and why. Questions from the evaluators are asked and answered. Then there is a break while the evaluators confer. Then the meeting reconvenes and recommendations are given and explained, whereupon the parties discuss settlement.
The court can also consider a change if the parent with custody has denied or interfered with the parenting time of the other parent. However, parenting time problems alone are usually not enough to change custody. Denying or interfering with a parenting time schedule is a factor that a court may consider in deciding to change custody. A judge can also change custody based on the “best interests of the child,” if both parents agreed to use that standard in a writing approved by the court.
Taking or hiding a child, or not returning the child after parenting time, can be a serious crime. Minnesota has a law which makes it a crime to deprive another of their custodial or parental rights. Under this law, you do not have to have a court order giving you custody or parenting time. If the other parent is hiding the child, you may be able to show that you have been deprived of your custodial or parental rights.
Court cutbacks mean that judges have less time to handle every case; many times, people find themselves stalled for months at a time waiting for a court date or for something to ‘happen’ on their case. Parties can spend tens of thousands of dollars on attorney fees and then one or two years later fire both attorneys and come up with their own agreement. Mediation lets people move forward at their own pace.
I want to get divorced, but my spouse doesn’t. Can my spouse prevent us from getting divorced? No. Your spouse can, however, refuse to work together on the terms of the divorce. If that happens, you would have to file for divorce and have your spouse served. Unfortunately, this would mean a contested divorce process, which is long and expensive and tends to generate new animosity between you. Faced with that prospect, many spouses eventually cooperate to develop a separation agreement and file an uncontested divorce.
Mediation is paid by the hour, and the parties generally split the fees equally, or pay the fee out of a joint account. The fees are paid in full either in advance or on the day of mediation. If the parties don’t finalize an agreement during the mediation, the fees paid may include time for the mediator to prepare a written summary, which is provided to both parties.
The court may appoint a “guardian ad litem” if it believes one party has hurt the child or that having someone to represent what's best for the child would be helpful. A guardian ad litem advises the court about custody, parenting time and support during the case. A guardian ad litem is different from other kinds of guardians. The guardian ad litem does not have custody. A guardian ad litem makes an independent investigation about what's best for the child and writes a report for the court. The parties may be asked to pay the costs of a guardian ad litem.
Fees may be charged on an hourly basis, or by the day or half-day. In general, mediators help the parties meet, explore options, and negotiate a mutual settlement to resolve their dispute. Mediators do not determine who is right or wrong. Instead, they help the parties reach a solution on their own that works for them. Parties should seek mediators with mediation training, experience, and specific knowledge of family law. It's also important to consider the mediator's style and mediation philosophy.
Consultation: Attorneys are available to meet (or telephone or Skype with) individuals to discuss the issues, provide information, and provide guidance. These consultations can often take place prior to the first mediation, after mediation sessions, and then once a final agreement is reached. The cost of these sessions are $125 (telephone) or $155 (Skype) per hour. (Minimum scheduled time for first session is one hour.)
This is a common fear which is rooted in the adversarial legal system. The reality is that many parents who are mediating their divorce separate before the divorce is final, some even purchase a second home. Living together after a decision has been made to divorce is extremely difficult. Separation provides many people the distance they need to more successfully manage the challenges and difficulties of divorce. During mediation you have many opportunities to be creative and solve problems in a cooperative and mutually beneficial manner.
Under Minnesota law, divorce is called dissolutionof marriage. Divorce cases are decided in family court. The court "dissolves" or ends the marriage when the final papers are entered in the court's records. These final papers are called the Judgment and Decree. The Judgment and Decree contains the court's final decision on other questions too. These include custody, parenting time, child support, and division of debts and property.