Newsletters::1998May
From R-KIDS of MN and GPF
Contents |
Second Families Bill Passes
The biggest victory of this session was the passage of the long-lobbied for second families bill.It basically requires a court to consider a support obligor's expenses for subsequent children as a shield to prevent support raises, but not necessarily as a sword to reduce previously-ordered support. The language is as follows:
Minnesota Statutes 1996, section 518.551, is amended by adding a subdivision to read: Subd. 5f. [SUBSEQUENT CHILDREN.] The needs of subsequent children shall not be factored into a support guidelines calculation under subdivision 5. The fact that an obligor had additional children after the entry of a child support order is not grounds for a modification to decrease the amount of support owed. However, the fact that an obligor has subsequent children shall be considered in response to a request by an obligee for a modification to increase child support. In order to deviate from the support guidelines in subdivision 5 to consider the needs of subsequent children, the trial court must: (1) find the obligor's total ability to contribute to dependent children, taking into account the obligor's income and reasonable expenses exclusive of child care. The obligor's expenses must be: (i) reduced as appropriate to take into account contributions to those costs by other adults who share the obligor's current household; and (ii) apportioned between the parent and any subsequent child with regard to shared benefits, including but not limited to, housing and transportation; (2) find the total needs of all the obligor's children, and if these needs are less than the obligor's ability to pay, the needs may become the obligor's child support obligation. When considering the needs of subsequent children, the trial court must reduce those amounts as appropriate to take into account the ability to contribute to those needs by another parent of the children; (3) make specific findings on the needs of the child or children who are the subject of the support order under consideration; and (4) exercise discretion to fairly determine the current support obligation and the contribution left available for other children, considering that the support obligation being determined should be in an amount at least equal to the contribution for a subsequent child. To a large degree, this just codifies what judges really should be doing anyway by virtue of preexisting statutes and case law, but not all judges give due consideration to expenses incurred for second families.
Social Security Support Offset For Children's Benefit Passes
Part of the bill that went through (SF 2276) includes an offset toward support for the benefit that the custodial parent gets from the federal government when the noncustodial parent gets disability benefits. Minnesota had been one of only two states in the country that required the obligor to pay guidelines support out of his or her regular disability check. Now, if the custodial parent's check exceeds the normal guidelines amount (which is often the case), there will be no support obligation. Those of you on Social Security should look into making your motion to reduce support.
Legislative Wrapup
Representative Andy Dawkins held hearings around the state during the fall of 1997, on the Parenting Plan Bill, H.F. 1323. He was the Chief Author of this Bill, introduced in the 1996/97 Session, and which was mentored in large part by the Erickson Mediation Institute.
These hearings were held 10/7/97 in Duluth, 10/15/97 in Willmar, 11/13/97 in Rochester, and 12/2/97 in St. Paul. Many people, including parents, children, Mediators, Psychologists, Ministers, Lawyers, Judges, DHS personnel, Battered Women's organization members, and other professionals gave testimony at these hearings. The parents, children, Mediators, Psychologists, Ministers, and about half of the lawyers were in favor of the bill. Opposition to the bill came from the Family Section of the State Bar Association, DHS, the Battered Women's groups, and the judges who testified (not all judges opposed the bill, just those who showed up at the hearings). Judge William Howard, former Chief Family Judge of Hennepin County, testified - "the system is not broken, so don't fix it" and then right after that said "I have to adjudicate 90 divorces before lunch, I can only spend long enough to find out who the obligor is and make a child support award". Imagine being a non-custodial parent in his court - hoping to plead for more time with your child…
Even after these hearings, Rep. Dawkins kept trying to improve the bill. Once the session started, the Family Law subcommittee of the Judiciary committee, which Rep. Dawkins was the chair of, took up consideration of the bill, and accepted more testimony. Ultimately it passed in the House by a wide margin.
On the Senate side, the Chief Author of the bill was Senator Leo Foley. He was also the Chair of the Family Law subcommittee in the Senate which would have to hear the bill first. Mr. Foley, sadly, listened to but did not hear the testimony of the People of his state. Instead all he heard was the voices of the Judges and Lawyers in opposition - a select but powerful few. He would not even give the bill a hearing in his subcommittee - something which he had power over. As a result, the bill was never heard by the Senate.
Therefore, a conference committee was held, to iron out differences between the Hosue and Senate family law bills. The committee met for two evenings, 3/19/98 and 3/26/98. In between, the Star Tribune published an editorial, on 3/24/98 very much in favor of the Parenting Plan language, and urging the senators on the committee to pass it. At the second meeting, the conferees took testimony. This testimony was mainly from opponents, and in particular from two Hennepin county judges and two lawyers from the Family Bar. They railed against the bill. Supporting testimony came from Marilyn McKnight of Erickson Mediation, and from former Chief Justice of the Minnesota Supreme Court, Sandy Keith. Justice Keith's testimony was very powerful. Unfortunately, it was not powerful enough, and the Parenting Plan provisions were stricken from the final Family Law bill. However, a Task Force was appointed, to look further into the matter. The resulting bill, found at SF 2276, was an Omnibus Family Law bill, which is expected to be signed shortly by the Governor.
So, although we ultimately lost, we gained a great deal. Rep. Dawkins and all those around him in this effort got the bill through the House, and certainly got everyone's attention. We have a great deal of testimony and input for a future bill, and have many eloquent and powerful supporters. We have a lot of momentum. We are poised for change. If we can keep up the pressure, we will prevail.
Several other bills related to grandparents' rights did not pass. There are other changes in SF 2276, including support liens on insurance proceeds, ALJ procedures, overpayments of support, and the putative Father's Registry. The Omnibus bill has passed out of conference committee and was signed by the Governor on April 20.
Chuck Perrin & Tim Theisen
Dear Editor,
I totally agree that children need BOTH their parents and grandparents. Sadly though, this is NOT always the way things work out. I just wanted to say that I'm glad that there are some people who realize that a parent is not expendable.
The sad thing is there are so many horror stories going on with regard to children, parents, and grandparents here in Minnesota... I know I am one of these many.
When I lost my pursuit for custody of my two daughters over 3 years ago, I had no idea that it would ultimately become an "all or nothing" matter with my daughters' mother... It was not what I had expected. I expected at least visitations, especially considering that they only live 6 miles away. However, I had no idea their mother had other motives (i.e., to have her new husband adopt our daughters.) But after 8 years, it all came crashing down. My daughters' visits immediately went from daily to only birthdays and Christmas exclusively... and then only for an hour or two... with a deluge of rules included (namely that I not be permitted to visit, call, etc...)
My daughters' mother felt that if she could keep at a constant arms-length at all times, I would eventually give up and she would accomplish this dream... However, I never gave up... I fought hard in court for my children for over 2 years just on visitation issues (and I am still fighting today!)
Although it is my legal right to have "reasonable" contact with my daughters, their mother has never afforded this to either me or my daughters. My daughters are forced to have telephone conversations over a speaker phone with both their mother and her new husband present to monitor them. Consequently, my daughters are reluctant to speak openly because they are not supposed to have feelings for me. Furthermore, these conversations are frequently interrupted by their mother or her new husband, and soon degenerate to become a hostile platform with which to voice other unrelated topics (e.g., child support.) Any attempts on my part to redirect these conversations resulted in the angry and immediate end of the phone call. Feeling that this was hardly conducive to my daughters, I felt that foregoing these phone calls was better than unnecessarily subjecting my daughters to such vulgar conditions.
My attempts to write my daughters letters was met with similar opposition. Their mother would intercept these letters and actively "nit-pick" them looking for any phrase or word simply to warrant justifying these letters as "inappropriate." Out of 26 letters I wrote my daughters over a one-year period, my daughters received only one of these letters! After the birth of my youngest daughter, my eldest daughters took the risk to write me a letter behind her mother's back to congratulate me. Over the next 6 months I wrote my daughters many letters, sending them photographs of their new baby sister. However, I soon learned that they had not received any of these letters or photographs. My recent attempt at getting a simple Happy Birthday message to my daughter by leaving a message at her school that stated simply, "Happy Birthday, Love Dad" was met by a hostile telephone call from my daughter's mother alleging of all things "Educational Harassment!"
In August this matter will be 4 years old, and still without closure in sight. My daughter's mother is still adamantly determined to keep me at a constant arms length from our daughters (although they live less than 6 miles from my home.) Any attempt on my part to participate in my daughters' lives is met with strong opposition by both their mother and her new husband.
Perhaps, one day I will get to see my daughters again... I would have never thought that taking one's children to "McDonald's" as a treat was grounds to discontinue visitations... but I digress.
People really need to realize the impact one selfish parent's actions can ultimately have. When I lost my custody case not only did I lose, but so did my parents, my brothers, and many other friends and family members who had an existing loving relationship with my daughters. Foremost, my daughters lost most of all, because they were not given any decision at all in this matter.
In circumstances such as these there are no winners . . . only losers.
Keep up the good work!
-Rusty
Do you want to express your viewpoint or share your story in the newsletter? E-mail to ttheisen@bitstream.net, or mail to Tim Theisen, R-KIDS Newsletter Editor, 2150 Third Av N Suite 300, Anoka MN 55303.
FYI: Physical custody, Legal custody, and access to records Custody is broken into two components: Physical and legal custody. Physical custody is defined under Minnesota law as the routine daily care and control and residence of the child. Legal custody means the right to determine, or have rights regarding, decisions regarding education, health care, and religious training.
Both physical custody and legal custody can be granted jointly to both parties, or solely to one party. Physical custody is usually granted solely to one party, with the other party usually being referred to as the "noncustodial" parent. The noncustodial parent will usually be awarded reasonable visitation, and ordered to pay child support. There are no statutory presumptions in favor of, or against, joint physical custody. Nevertheless, judges rarely grant joint physical custody unless both parties agree. Judges fear that unless they put one parent in total control, then any minor dispute might end up back to court.
There is a presumption in favor of joint legal custody. Thus, it is quite typical for a "noncustodial" parent to still have rights toward decisions regarding health, education, and religion. If the court needs to decide whether to grant "joint custody," there are certain factors that the court needs to consider, which basically boil down to cooperation and whether there's been domestic abuse. The statute uses the same factors for joint legal custody as for joint physical custody, the only difference is the presumption in favor of joint legal custody. Some parents who know they will get, or already have, sole physical custody, can be motivated to be noncooperative in order to avoid joint physical or joint legal custody. I've seen this happen to many of my clients.
Regardless of whether there is joint legal custody, the statutes also grant both parents access to medical, school, and religious records. Also, both parents have a duty to inform the other of the current school, and of any accidents or serious injuries to the children. These rights are granted by statute, unless specifically waived by the Court. Thus, even if you don't have joint legal custody, you should be able to get these records.
Some noncustodial parents have run into problems when the child is on medical assistance or the MinnesotaCare health plan. The government has taken the position that it cannot release information regarding the child without a release from the custodial parent. THIS IS NOT THE LAW. If this happens to you, send them a copy of your decree, and point to Appendix A. If that doesn't work, call the Attorney General's office. Tim Theisen
Rally held at Hennepin County Courthouse
On April 21, 1R-KIDS and Grandparents Preserving Families jointly sponsored a rally at the Hennepin County Government Center.
The purpose of the rally was to remember Steve Sullivan, a suicide victim with children, and to help his mother Susan Sullivan, who has not been allowed to see her grandchildren, as well as all denied parents and grandparents.
The rally attracted several hundred people who listened to music by Dan "The Piano Man" Emurian and speakers ranging from John Remington Graham, candidate for Attorney General, to Ann Rivera, Parental Alienation Syndrome analyst, to a little girl who summed up the entire spirit of the event when she said "it's not fair that dads can't see their kids." Steve Blake
Upcoming events
The next general membership meeting is set for 7:00 PM on May 19, at the Brookdale library on Shingle Creek Dr. Speakers will be announced.
Congressional bill may erode joint custody rights
We have learned that the pending federal Violence Against Women Act has provisions, suggesting, though not necessarily mandating, that joint custody be denied where there has been domestic abuse. The bill is currently in committee. The R-KIDS board has not, at press time, had an opportunity to review the legislation and take a position, but we will have an update in our next newsletter and on our webpage.
The law essentially says what Minnesota law already says regarding joint custody where there is domestic abuse (i.e. slim chance). It also says it is not in the best interests of children to presume that abuse allegations made during a custody proceeding were falsely made for tactical advantage. It seems from the summaries we've seen that this law might tend to be a real step backward from the trend toward shared parenting. It's also questionable what the federal government is doing legislating family law (whatever happened to the Tenth Amendment, which says that all powers not constitutionally granted to Congress are reserved for the states?)
R-KIDS Organization
Board 1998
- David Lamb, President
- Gale Anderson
- Bob Carrillo
- Ken Schamberger
- Steve Blake
- John Satterlee
- Knute Gladen
- Jamie Phelps
Newsletter Editor
- Tim Theisen, Esq.
Lobbyist
- Chuck Perrin
Webpage operator
- Chuck Perrin
ABOUT R-KIDS OF MINNESOTA
- R-KIDS is a non-profit organization dedicated to educating law makers, family law professionals and the public with regard to family law and social services and their effects on children, families, and the consequences to the taxpayer.
- Our main concern is for our community of children of divorced, separated, or unwed families. We believe that children need, want and deserve the love, support and involvement of both parents regardless of marital status.
- Founded in 1985, our membership is comprised of both moms and dads, custodial and non-custodial parents, grandparents, stepparents, and professionals such as social workers, doctors, attorneys, and family law practitioners.
- It is the objective of R-KIDS to develop equitable family law legislation in an effort to improve the lives of all Minnesota children.
"ALL CHILDREN NEED BOTH PARENTS AND ALL GRANDPARENTS IN THEIR LIVES"
- Unless those affected by the current family law system voice an opinion and demand positive change, we and our children will continue to suffer. This change will not occur without your help! Legislators and family law professionals need to hear from; parents, grandparents, and constituents. Until they do, things will not change.
R-KIDS CONCERNS AND ISSUES
- The needs of children to have frequent and meaningful contact with both parents.
- The lack of effective consequences for denied visitation or parental interference.
- Consideration of the financial and emotional responsibility of both parents to provide for their children equally.
- Dissemination of information to the public about current family law issues and the long term consequences for our children, families and the tax payer.
- The harmful impact of out-of-state or long distance relocation on the parent- child relationship.
- Fair and equitable sharing of child support responsibilities which takes into consideration the financial needs of children in second families, as well.
- The negative impact of the adversarial court system and social services upon divorcing families with children.
- Removal of the myth perpetuated in our judicial and family law professional systems that only mothers are nurturing and fathers are financial providers.
- Accountability for the use of child support.
- The impact of the no-fault divorce system on families with children and the need for effective education for parents considering marriage, separation, or divorce.
R-KIDS website is http://www.rkids.org
Do you want to express your viewpoint or share your story in the newsletter? E-mail to ttheisen@bitstream.net, or mail to Tim Theisen, R-KIDS Newsletter Editor, 229 Jackson Street, Suite 105, , Anoka MN 55303. We reserve the right to edit. We will use your name unless asked not to do so. Obviously, viewpoints expressed by readers do not necessarily reflect the position of R-KIDS.
Give to RKIDS Charitable Fund
R-KIDS Charitable fund is a tax exempt, 501(c )(3) foundation. The proceeds WILL NOT BE USED FOR LOBBYING. The fund currently needs money for various charitable activities of benefit to children of divorce. Send your tax deductible donation of $25, $50, or $100 today! Make checks payable to R-KIDS Charitable Fund. Mail to R-KIDS PO Box 24658, Mpls, MN 55424.
This newsletter is distributed via US mail and e-mail. If you are getting it via regular mail, but you have an e-mail address, let us know your e-mail address. Send a note to Editor Tim Theisen, ttheisen@bitstream.net . Not only will you get the newsletter a couple weeks sooner, but you’ll also get certain bulletins between newsletters, and you’ll save us postage costs as well! Also, the e-mail version of the newsletter sometimes has extra articles that didn’t make the editor’s final cut for the print version.
The R-KIDS newsletter does not purport to give legal advice. The information contained herein is general in nature; individual circumstances will always vary.
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