New position

Great news! I moved to a new law firm, Joslin & Moore Law Offices, P.A. We are located in Cambridge, Minnesota. I will still handle family law cases (custody, divorce, parenting time, grandparent visitation, child support, paternity) and I now also handle criminal cases, wills, probate, and personal injury. Joslin & Moore is a full service law firm that handles business, civil litigation, probate, employment and real estate. Please feel free to contact us at 763-689-4101.

The Minnesota Supreme Court filed a decision yesterday (Rohmiller v. Hart), February 29, 2012, holding that an aunt who does not stand in loco parentis with a child has no right under Minn. Stat. § 257.08 (2010) to visitation with a minor child over the objections of the child’s fit parent. In an earlier case (SooHoo v. Johnson, 731 N.W.2d 813, 822 (Minn. 2007)), the Supreme Court stated that “[t]he term ‘in loco parentis,’ according to its generally accepted common-law meaning, refers to a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption and embodies the two ideas of assuming the parental status and discharging the parental duties.” Under Minn. Stat. § 257C.08, subd. 4, if an unmarried minor has resided with a person (other than a foster parent) for two years or more and no longer resides with the person, the person may petition for visitation. The court shall grant visitation in that situation if the court finds that it would be in the child’s best interests, the person and the child had established emotion ties and the visitation would not interfere with the relationship between the parent and child. There is nothing in 257C.08 that gives an aunt the right to visitation with her niece or nephew simply based upon the child’s best interests or just based on the relationship.

Grandparents and custody

Recently I successfully helped my clients to get temporary sole legal and physical custody of their grandchildren. I believe this is happening more often because of adult children (parents of the grandchildren) having alcohol and/or drug problems. There are several factors to consider when deciding whether to pursue this route. One is do you meet the statutory requirements? This you can determine by meeting with an attorney. Two, do you have the financial resources for this? Unfortunately custody cases can become very expensive. Three, is it worth antagonizing your adult child and/or is this what is best for the grandchildren. There is an emotional toll when going through this type of litigation. My clients felt all sorts of emotions as we progressed through their case. They were very concerned about their adult daughter since they want her to become healthy yet they were looking out for the best interests of their grandchildren.

If you have concerns about your grandchildren, talk to an attorney. He or she can help you know whether you even meet the statutory requirements for attempting to get custody of your grandchildren. Additionally, most attorneys will discuss with you the financial and emotional strain this may have on you. You should know what you are getting into before you decide what to do.

Finding a Family Law Attorney

When searching for a family law attorney, there are few items that you need to take into consideration.

First, where is the attorney located? Is the attorney located in or near the courthouse where your case will be heard? Would you rather have the attorney close to your home or work so that you can meet easily with the attorney?

Second, has the attorney handled your type of case before? Most attorneys offer free consultations or consultations for a small fee. During this consultation, ask the attorney how many cases like your case that he/she has handled. Ask how long the attorney has been practicing in the area of family law and has she/he ever had a case in the county where the action is taking place.

Third, make sure you feel comfortable with the attorney. If your gut tells you not to hire the attorney, listen to your gut. You want to work with an attorney that you feel comfortable with.

Finally, ask others about what attorney they have used.

H. Swisher Law Firm LLC offers free consultations. I have appeared and handled cases in Anoka, Sherburne, Mille Lacs, Benton, Isanti, Wright, Chisago, Ramsey, Stearns, and Hennepin County. I meet clients in Elk River, Coon Rapids and St. Francis. I have been a family law attorney for over four years and I have experience as a child support officer and legal assistant. Please feel free to contact me for a consultation.

Modifying parenting time

A new case, Boland v. Boland, explains the framework for a court to evaluate a motion to modify custody. A party seeking to modify custody must support their motion with an affidavit stating the relevant facts supporting the requested modification. The district court must accept the facts in the moving party's affidavit as true, disregard contrary allegations in the other party's affidavits, and consider the other party's allegations only as explanations or contextualizations. Next, the district court must determine if the moving party has made a prima facie (evident at first sight) showing for modification. If there is a prima facie showing, then an evidentiary hearing will occur.

What does this mean? It means that the party wanting to change custody must show in their affidavits that there are legal grounds for modifying the custody. There are four statutory factors that the moving party must establish before the court will find a prima facie showing:

1. A change in circumstances;
2. The modification is necessary for the child's best interests;
3. That the child's present environment endangers his/her physical or emotional health, or emotional development; and
4. That the harm from changing custody outweighs the advantage of the change.

These four factors can be difficult to prove but it all depends on the facts of the case.

Child Support Modification

Pursuant to Minn. Stat. 518A.39, subd. 2, child support may be modified if there has been a substantial change in the gross income of either the obligor or obligee. Since 2007, child support is based upon the gross incomes of both the mother and father (income shares method). Previously child support was a percentage of the obligor's net income. The first time child support is modified using the income shares method, the new child support amount may cause a financial hardship on either the obligor or obligee. As a result, the legislators included 518A.39, subd. 2(k) which states "On the first modification under the income shares method of calculation, the modification of basic support may be limited if the amount of the full variance would create hardship for either the obligor or the obligee." With proper preparation and evidence, an obligor or obligee may successfully limit the modification of child support using this statute.

Parenting time and child support

During consultations, people ask me if parenting time affects child support. The answer is yes it can but it depends. Child support can be reduced depending upon the amount of court ordered parenting time. For instance, if there is no court ordered parenting time, then child support will not be reduced even if the parent exercises parenting time on a regular basis. People should be aware too that if a parent has court ordered parenting time but does not exercise their parenting time, that parent can still get a reduction in child support based upon the percent of court ordered parenting time. This was recently addressed by the Court of Appeals in an unpublished opinion, Hesse v. Hesse, A08-2255 (Minn. App. 12/1/2009) (Minn. Appl. 2009). In this case, the father had court ordered parenting time of more than 45.1%; therefore, he met the requirement for a reduction in his child support obligation. The mother argued that since the father did not exercise his two weeks of vacation, his parenting time was less than 45.1%. Minn. Stat. 518A.36, subd. 1(a) states that the "percentage of parenting time means the percentage of time a child is scheduled to spend with the parent during a calendar year according to a court order." As a result, the child support was modified based on the court ordered percentage of parenting time and not the amount of actual parenting time that the father exercised during a calendar year.