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.

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 continues after death of obligor

Estate of Thomas J. McCarthy, unpublished, September 15, 2009, Minnesota Court of Appeals.

Mr. McCarthy had a child support obligation for his disabled son. (There can be a child support obligation past the age of 18 if a child is disabled.) After Mr. McCarthy's death, his 48-year-old son made a claim against his father's estate for child support, medical expenses and insurance coverage that the father was or potentially could be obligated to pay to his son. The Court of Appeals found that the district court erred when its determined that the son's claim for child support after his father's death was barred. The Court looked to Minnesota Statute Section 518A.39, subd. 4 (2008) which states "Unless otherwise agreed in writing or expressly provided in the order, provisions for the support of a child are not terminated by the death of a parent obligated to support the child. When a parent obligated to pay support dies, the amount of support may be modified, revoked, or commuted to a lump-sum payment, to the extent just and appropriate in the circumstances." In other words, if an obligor dies before his or her child support obligation is terminated and there are assets in the obligor's estate, a claim can be made against the obligor's estate for the unpaid child support.

New Law Firm in St. Francis MN

Announcement: St. Francis, Minnesota has a new law firm in town. H. Swisher Law Firm LLC. Please let me introduce myself, I am Heidi A. Swisher, Esq. I have a major in Family Relationships, worked as a child support officer and legal assistant for Anoka County, and have been an attorney for over three years. I practice in the area of family law which includes divorce, child support, child custody, parenting time (visitation), paternity, spousal mainteance (alimony) and moving children out of the state. I am especially well acquainted with child support since I worked as a child support officer for two years and as a legal assistant working on child support/paternity cases. In two months, I will also be doing wills, health care directives, and power of attorney. My goal is to be the general small town attorney for the City of St. Francis, MN.

This blog will be used to post new developments in family law which will include case law and statutory law. Thankyou for visiting my blog!!