In a 20-page opinion the Minnesota Court of Appeals reversed an Order made by Hennepin County Referee Kevin McGrath that previously had granted an “unprecedented” amount of parenting time of a grandchild to the grandmother. In 2009 Brittany Givens-Copeland, 24, was strangled by a former boyfriend. Her son was only 4 months old at the time. Givens-Copeland came from one of Minnesota’s most philanthropic black families. Givens-Copeland’s mother is a prominent businesswoman and entrepreneur in the Minneapolis area. The boy’s father, Anthony Darst, was active in his son’s life, and saw him regularly before his mother’s death.

Givens-Copeland petitioned for and was granted custody of the child without Darst’s knowledge. Darst sought custody and was awarded sole legal and physical custody of the child. McGrath granted Givens-Copeland visitation twice per week and every other weekend. In Minnesota, a district court has broad discretion to determine what is in the best interests of a child regarding visitation. The authority of the Court to consider grandparents when making visitation decisions is laid out in Minnesota Statute § 518.1752 which incorporates by reference the statutory provisions of Minnesota Statutes Sec. 257C.08.
257C.08 specifically allows the district court to consider a request (by petition) for grandparent’s rights to visitation if the grandparents are the parents of a deceased parent of the child. It states specifically that:
If a parent of an unmarried minor child is deceased, the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application.

The Court of Appeals found that the schedule awarded to Givens-Copeland interfered with Darst’s relationship with his son. The Court went on to say that while such a schedule may be appropriate for unmarried parents, grandparents still have more limited rights. Givens-Copeland was still awarded time with the child, just on a more limited basis.

A recent decision by the United States Supreme Court found that when a custodial parent brings an action for contempt for nonpayment of child support, the state is not required to provide counsel for the noncustodial parent. The state must have procedural safeguards in place to protect the contemnor’s due process rights, including the following: 1) notice to the contemnor that “ability to pay” is a critical issue; 2) a form to get financial information from the contemnor; 3) an opportunity for the contemnor to respond regarding his or her financial status at the hearing; and 4) an express finding regarding the ability to pay.
This decision was 5-4. The dissent disagreed to the extent that it was limited to civil contempt cases where the other party is unrepresented as well; those justices believed that the Due Process Clause of the Fourteenth Amendment created NO right for indigent defendants in civil contempt proceedings facing incarceration.
Currently, Minnesota provides public defenders for contemnors in child support hearings who are indigent and do not have counsel. With the current budget crisis and understaffing at the public defenders’ offices, this does give Minnesota a way to cut back some of those costs.

There has been much talk of the government shutdown in the state of Minnesota, scheduled for July 1 if the legislators and governor are unable to reach an agreement on the budget. As of now, an agreement does not seem promising, and both sides are taking further steps to protect programs during the shutdown.

Both sides are now turning to the courts to help them. Governor Dayton is requesting a mediator or special master to help either settle the dispute or have control over spending in the future. Four Republican senators have filed a brief with the Minnesota Supreme Court trying to bar any involvement by a special master or mediator, and list the necessary functions that would continue in the event of a shutdown. The two sides of the debate do not agree on what the essential services are.

In the bigger picture, the shutdown could affect the court system as all of the court’s duties are not looked at as essential. There is no way to predict how that would affect people’s abilities to enforce their rights in court, since there is already such a backlog in the court system from the budget cuts in recent years.

If you have ever practiced in Dakota County, you know that the judicial officers are assigned to a matter at the last minute and that the judicial officer will probably change with each court appearance. I had a contested divorce involving custody in Dakota County and due to the complex fact pattern I wanted to stick with the same judge that was present at the ICMC. Other attorneys told me that blocking a judge in Dakota County is simple: contact court administration, request the particular judge to remain the judicial officer on your matter, and you’re good to go.
It wasn’t that simple.
I contacted court administration. They told me I had to contact the judge directly. So I contacted the judge directly. At this point, opposing counsel objected to my request for blocking. The judge responded that she could only remain the judicial officer with an agreement from opposing counsel (which was not going to happen) or if I requested the blocking through First Judicial District Central Assignment. I contacted Central Assignment and they told me I had to contact the Chief Judge of Dakota County.
I contacted the Chief Judge, citing complexities in the case as the reason for my request, and was subsequently shot down. The Chief Judge explained that he would not assign a specific judicial officer unless both counsel agreed to the assignment or if it appeared that the matter was complex enough to warrant blocking; then he would assign a judicial officer at random.
After speaking with other attorneys who practice mostly in Dakota County, it seems that blocking occurs when there are complex financial components in business litigation case rather than in a contested divorce.
So if you are considering trying to block your family law case, I would advise you to expend your efforts elsewhere.

I read an interesting article on MPR news regarding the increased efficiency with the new electronic filing system. This article focused on the benefits in the criminal system, including having the same information entered into databases across departments and being able to electronically sign criminal complaints. These benefits carry to other areas of law too. One of the best parts of an electronic system will be the ability to electronically serve all parties with pleadings and case-related documents. The decrease in administrative costs to local courthouses should also help with the current budget crisis.

In many child custody cases, there comes a point where one party wants to modify the custodial arrangement already in place.  This can be for legal custody, the right to make big decisions regarding your child, or physical custody, where your child resides on a daily basis.  Modifying either kind of custody is controlled by Minnesota statute.

In order to change custody, a parent must prove that circumstances have changed since the prior order awarding custody and that it is in the child’s best interests to modify custody.  In addition, the parties must agree to change custody, the child must be integrated into the home of the noncustodial parent with the custodial parent’s consent, the child is endangered by the current environment, or the custodial parent requested to move out of state, was denied, and did it anyway.

This standard is not an easy one to reach if the parties are not in agreement.  The court must hold multiple hearings to determine whether custody should be transferred, and the final hearing is basically a trial on the issue.

Once the court has heard a case to modify custody, there is a two-year waiting period before it will hear another request on that topic.  It is important to understand the legal standard and make sure you have enough evidence to go forward the first time.  Modification cases are very complex, and it is advisable to have an attorney assist you to make sure you are doing everything properly.

It does happen where divorce cases are carrying on, sometimes very contentious, and the parties decide to reconcile and try to work things out.  What happens at that point?  Are you able to just pretend as though the legal battle hasn’t happened?

If you are in the middle of a court battle and both parties decide to call it off, you are able to dismiss your divorce in a Minnesota court.  The more common approach, however, is to put your case on hold, known as “inactive status”.  The court is able to place a matter on inactive status, meaning nothing is going on with it, for a set period of time.  After that time expires, if the parties are still working on reconciliation, then the court case will be closed.

A benefit to using inactive status versus just dismissing the case is if it does not work out.  There are filing fees associated with any case started in court.  If you dismiss your case and change your mind even a week later, then you will have to reopen a new case and repay the hefty fees.  Also, if the case needs to be started up again, all of the work you had done to that point won’t be lost if the case is just inactive.

Sometimes the case comes up where a couple has been separated for years and a spouse seeking a divorce has no idea where the other spouse is.  How does the court handle this situation?

In Minnesota, if one spouse claims irreconcilable differences and that the marriage cannot be saved, the court will grant a divorce—you do not need the consent of the other spouse.  However, the other spouse is entitled to have notice that the proceedings are going on so that they can be involved in the process.

Normally, the spouse asking for the divorce must have the other party “personally served”, meaning any other individual over the age of 18 that is not a party to the divorce must hand them the initial paperwork and let them know that a divorce proceeding is underway.  If that party cannot be found to be personally served, the party seeking the divorce is able to ask the court for permission to serve them by “alternate means”.  Alternate means would include sending copies of the documents to the last known address(es) of the spouse. 

Another alternative is “notice by publication.”  In this method, the spouse seeking the divorce publishes notice of the divorce in a legal newspaper in the county where the other spouse is thought to reside.  The spouse has a certain amount of time after the notice is published to come forward if they are interested in participating in the process. 

Often when the other party cannot be found for personal service, the case proceeds by default.  The court can finalize the divorce and divide property, subject to some restrictions, without the responding party ever being involved.  If you cannot find your spouse and are seeking a divorce in Minnesota, it is helpful to speak with an attorney about your options.

There are many reasons why spouses decide to go their separate ways, but it is far from uncommon that one of the reasons is often dishonesty of one of the spouses.  The most common ways dishonesty makes its way into a divorce discussion is in the form of lying about finances or having an extramarital affair.

In terms of divorce, Minnesota is a no-fault state.  This means that the court is not going to take into account the wrongdoing of either party when determining custody or the division of property.

When determining custody, the court looks at the best interests of the children.  Personal wrongdoing of a party will only affect the custody determination if it affected the children in any way directly.  If a spouse has been having an affair, but the children do not know about it nor do they know the other party, for example, it will not affect the custody determination.  However, if the parent was supposed to be watching the children but was negligent in their care while carrying on an affair, that would play a role in the custody determination.

Financial dishonesty may be considered by the court in the property division.  The general rule of the court for dividing property is that it is fair and equitable for the parties.  If one party had a gambling problem, for example, and spent a large portion of the marital estate without the knowledge of the other party, that may be taken into account.  Generally, however, both spouses know where money is being spent.  If a spouse finds out that the other was wasting the assets but forgives them, continuing in the relationship, the argument that the spouse who wasted assets should be somehow punished for it is not going to carry as much weight in the eyes of the court.

In marriage and divorce, often both parties are not on completely equal levels regarding their respective income.  This often results in the parties leaving the marriage with different standards of living and disposable income.

Spousal maintenance, or alimony, is not as common as it once was in Minnesota divorces.  Minnesota law defines who qualifies to receive spousal maintenance based on a variety of factors, including the length of the marriage, the standard of living established during the marriage, and the ability of each party to support themselves to that level on their own.  If there is a larger disparity in income and one party can meet their needs while contributing to the finances of the other, than maintenance may be awarded.

Spousal maitnenance may be temporary or permanent in nature.  If one party has a lower earning capacity at the time of the divorce but with a few years of retraining or further education, that spouse would be capable of supporting themselves, then the court will probably order temporary maintenance.  If it was a very long-term marriage and there is no conceivable way the other spouse could earn enough to support the standard of living or there are medical concerns that bar the spouse from working, however, the court may opt for an award of permanent spousal maintenance instead.