Child Obesity a Factor in Custody Disputes

An article in Sunday's Wall Street Journal (Oct.29, 2011) discusses childhood nutrition and obesity as a growing factor in child custody disputes.  The link is too long to list here, so go to:

http://online.wsj.com/

Then search "obesity".

When this issue has been before me there has been a lack of medical evidence offered as to the child in question, just general allegations that he eats at fast food places several times a week.  The party seeking to prove the child is obese and suffering health problems while in the other parent's care has the burden of proof.  Mere allegations without medical proof are insufficient in my estimation.

LINK for parents:  http://www.mayoclinic.com/health/divorce/HO00055

One-Year Waiting Period for Divorce Promoted by Possible SCOTUS Appointee Based on a MN Study

In an article  at www.slate.com/blogs/xx_factor/2011/10/26/second_chances_act_why_a_one_year_waiting_period_for_divorcing_p.html?wpisrc=tw
 there is a further link to an editorial in the Washington Post in which Prof. William J.Doherty (U of MN) and former judge Leah Ward Sears (possible SCOTUS appointee?) promote a mandatory one-year waiting period before parents with minor children may get divorced. Reference is made to a Minnesota study of 2,484 divorcing parents.  You will find a link in the Slate article to "Interest in Marital Reconciliation Among Divorcing Parents", authored in part by Prof. Doherty and Hennepin County (MN) Judge Bruce Peterson,  published in Family Court Review, Vol. 49, No. 2, April 2011. 
Blog in Spring 2010 about possible SCOTUS appointees is at http://www.scotusblog.com/2010/04/wednesday-round-up-29/

To Unrepresented Parties, Part 2: You Must Act Civilly and Respectfully to the Opposing Attorney

Frequently in family law cases only one party has an attorney.  The unrepresented party acting as their own lawyer often acts uncivilly to the attorney, refusing to answer discovery requests or refusing to return phone calls.  This is not acceptable behavior and may result in sanctions by the court.  Unrepresented parties have the same obligations as lawyers to follow the rules of court AND to act responsibly and civlly to court staff and the opposing party.  Some unrepresented parties become upset because their spouse has been "empowered" through the legal process, with the assistance of their attorney.  This, however, is not an excuse for rude behavior.  Persons who act in this fashion risk being ordered to pay attorney's fees incurred by their opponent due to their non-cooperation.

To Unrepresented Parties: The Judge Cannot Act as Your Lawyer

Over the past 10 years the Minnesota Judicial Branch has devoted much time, energy and public resources to developing self-help forms and centers to assist unrepresented parties in family court.  This gives many people access to justice that they would not otherwise have.  I think that 40 years ago the laws and rules of family court were a mystery to most people and they had no alternative but to retain a lawyer.  But access to justice does not mean that a judge can act as the lawyer for an unrepresented party.  First and foremost it is unethical under the Code of Judicial Conduct.  "A judge shall uphold and apply the law...fairly and impartially," states Rule 2.2.  The Comment to the rule states "a judge (may) make reasonable accomodations" to pro se parties.  Rule 3.3 is clear:  A judge shall not practice law. 

Parties appearing in family court without a lawyer are expected to follow the rules, with "reasonable accomodations."  To me this means that timeliness rules need not be strictly applied unless there is prejudice to the other party, particularly a denial of due process.  However, unrepresented parties cannot submit unsworn statements to the judge at the hearing; they must follow the rules of evidence.  The purpose of our rules of evidence is to find the truth.  Parties cannot circumvent the rules because they do not have a lawyer.

So don't be surprised if when you come to court without a lawyer, the judge simply says to you, "Proceed with your case."  The judge cannot act as your lawyer.

Emancipation of Children Alone Not a Basis for Modification of Spousal Maintenance

The MN Court of Appeals in Geisler v. Geisler, reported 10-3-11, reversed the trial court's modification of spousal maintenance based upon, among other things, the trial court's finding of fact that the emancipation of the parties' children constituted a substantial change in circumstances.  The Court of Appeals stated, "...the mere loss of child support cannot constitute a decrease in gross income. See Lee v. Lee, 775 NW2d 631, 635 n.5 (Minn. 2009)"  The definition of gross income in Minn. Stat. 518A.39, Sub.  2(a)(1) does not include child support.  Geisler is instructive as it states what the court must consider under these circumstances, what the relevant time periods are for analysis of a change in income and expenses, and the type of evidence that will be required for the court to make the necessary findings of fact., ie. detailed and docuemented income and living expenses.  Counsel cannot assume that the court will find that the obligee's monthly living expenses have necessarily been reduced due to emancipation of the youngest child.

Requirements for Stipulated Decrees in Minnesota

Minnesota judges receive many stipulated divorce decrees and marital termination agreements for administrative review or review prior to a default hearing.  Those prepared by unrepresented parties often are quite a mess, such as retirement provisions that simply state, "He gets 1/2 of her 401k" and nothing more.  These poorly-drafted decrees often result in post-decree litigation due to their vagueness or questionable enforceability.
I am aware that the family lawyer's staff may simply merge the Petition and Agreement into the proposed Decree.  But, please, review the decree before sending it to the judge.  Be certain that the tense of certain phrases from the Petition are still applicable. 

1.  VENUE:   I see many decrees that state, "That Petitioner has been and now is a resident of the State of Minnesota and County of Wright."  But that is not the proper language for the decree.  The decree must state the place of residence or domicile when the matter was commenced.  Often the Petitioner has moved and no longer resides in the same county as when the petition was signed.  This is not a minor point and concerns proper venue. 

2.  CHILD SUPPORT ORDERS AND MAINTENANCE WAIVERS:  Be certain to have detailed findings of fact to support any deviation from the child support guidelines, or a waiver of spousal maintenance, particularly for a long marriage.  Attach a Child Support Guidelines Worksheet.  Check MSA 518.552 (5) for the requirements for a proper waiver of maintenance.  It is preferable that you state each party's monthly living expenses.

3.  REAL ESTATE:  "Legal to govern" has long been discarded as proper language.  Check the legal description once again and don't count on a tax statement as being accurate. We see many requests to amend a decree years later due to incorrect legal descriptions in the original decree.

4.  PARENT EDUCATION CLASS:  Be sure each party has attended the required class before submitting the decree.

5.  NAME CHANGE:  Submit the proper affidavit of name change with the decree if your client is requesting a name change.

6. UNEQUAL PROPERTY DIVISION:  If the property division varies greatly from an equal division, provide specific findings of fact explaining why, including non-marital property.

Preparing a Client to Testify

There are abundant resources for lawyers on preparing a client to testify in a jury trial.  (Just Google "preparing client trial")   Mock trial teams of high schoolers as witnesses do a great job because they are well-coached and practice-practice-practice.  Though it is kind of irritating when they turn to look at the judge when they answer each question. But, I digress.  Here are a few tips:

1.  Have your client go to court and watch a trial for at least an hour...and not a TV judge.
2.  Explain how testimony in court differs from any deposition they may have attended.
3.  Explain how they must act in listening to their opponent's evidence: No interupting, no facial expressions, no shaking of the head, no whispering.
4.  Explain how written documents are introduced.  Practice with them if you have a binder with hundreds of pages of exhibits.  Consider asking the judge to let your client sit at counsel table so you can easily show them the exhibits.
5.  Most importantly: Explain what being responsive to the question means.  If asked a "yes-or-no" question, they must answer yes or no, or I can't answer that.  No additions, no editorial comment, just answer the question.
6.  Be sure they understand how much time the judge has to render a decision.
7.  Practice cross-examination with the client.  Make sure they understand that they look bad if they argue with opposing counsel (something many law enforcement officers do).
8.  Explain that they may not answer the question until the lawyer is finished asking the question.
9.  Explain that you cannot help them when they are on the witness stand.  All you can do is object.
10.  It shouldn't need explaining but do so anyway: no profanity and no raising of one's voice.
11. Consider having them review their affidavits and deposition transcript as they will likely be cross-examined about them.
12. Explain that when either attorney objects to a question, they must wait to answer after the judge rules on the objection and indicates whether they may answer the question.
13.  If you feel the need, discuss your ethical obligations if your client is commiting perjury.

Good luck!