Newsletters::2003 December
From R-KIDS of MN and GPF
Minnesotans now getting child support through Visa cards
Jean Hopfensperger, Star Tribune
Published August 10, 2003
A Visa card to tap your child support? It's the latest twist in support payments, and Minnesota is one of the first states to test it.
It's also part of a new, unlikely alliance between private financial institutions and government social programs.
The Visa plan, rolling out this summer, allows parents receiving child support to forgo the check in the mail. Instead, the money is deposited into a Visa debit account.
Parents may use the card to make purchases or withdraw cash at an ATM. In addition, they get documentation on how they have spent it -- something ex-husbands and ex-wives increasingly want.
"You just call [the Visa company] to see if the money is on your card, and off you go," said Debra Anderson, a Rochester mother who started using her card last month.
"You don't have to deal with cashing your check at a bank, or waiting for the check in the mail," Anderson said.
"And you don't have to worry about losing your money."
About 225,000 Minnesota children receive their child support through a state collections system. It typically garnishes the pay of the non-custodial parent and routes the money to the parent with the child.
The state, in fact, cranks out $46 million in child-support checks every month, according to the Minnesota Department of Human Services, which oversees the system.
The Visa plan is one of three new options for parents, said Maria Gomez, an assistant commissioner at the department. Parents also can have their child support transferred to their checking or savings accounts.
The goal, Gomez said, is to speed up the delivery of the money as well as get the government out of the role of cutting paper checks.
"It's a win-win situation, these electronic deposits," she said.
It is actually a win-win-win situation, say executives for Visa and U.S. Bank, which is issuing the Visa child-support cards. Getting Visa cards into the hands of tens of thousands of people -- many without bank accounts -- helps their business. Merchants that accept the cards must pay Visa user fees.
Business aside, parents who have used the cards give them strong reviews. Anderson, for example, liked the idea that she could now rent a car or reserve a hotel room, because she had a Visa number.
And Paula Koenig, who lives outside Fort Worth, Texas, says her child-support payments now arrive at least five days earlier than they used to. Her ex-husband lives in Minnesota.
"I wish they had this years ago," said Koenig, who receives child support for their 17-year-old daughter. "I was a single parent for eight years, and that five days meant a lot."
Koenig also likes using the Visa card as a "forced savings account."
"If you want to save to send the kid to camp, or for major medical bills, you can let the balance build up," she said. "If the check comes to you, you spend it."
Other selling points: The card offers standard Visa protections; if it is lost or stolen, the money is protected, said John Focht, manager for prepaid products for U.S. Bank. And parents can tap the money any time, any place -- regardless of whether they're out of town when the check arrives.
The child-support Visa cards have been tested in Colorado, Washington and Iowa, said Nizam Antoo, director of prepaid products for Visa USA.
U.S. Bank issues the child-support cards in those states, as well as in Minnesota. The bank hopes to expand into other government benefits, Focht said. For example, it has launched a pilot program in Washington state to distribute unemployment compensation checks.
"From an industry perspective, this is really in its infancy," Focht said.
Said Antoo, "When you look at most states and government entities, they disburse a lot of checks -- child support, unemployment insurance, payroll checks for their employees. We wanted to develop a solution to streamline those payments, to reduce the cost of checks."
In spite of its benefits, the Visa card isn't the top choice for most parents. Of the 48,000 parents who have signed up for electronic direct deposit, 38,000 chose to route the money to their checking accounts, 7,000 chose the Visa card and 3,000 chose their savings accounts, said Gomez.
"So it's not a large number of people who chose the card, but a significant number of people," she said. "If this works, we'd like this to become the way that most people get their benefits."
For more information on the Visa plan or the direct bank deposits, call 651-215-5630 or check http://www.dhs.state.mn.us
Children and the Law Section of the state Bar Association presents an informational Continuing Legal Education Class
"Child Support Bills"
Authored by: Representative Steve Smith, District 33A, Practices in the area of family law with Fisher-Smith Attorneys, Richfield, MN. Representative Rob Eastlund, District 17A
Presenters: Jack Graham, former & founding law professor from Hamline Law School, specialist in British, American and Canadian Constitutional law and history. Mark Rogers, economist, formerly with the Federal Reserve Bank of Atlanta for 19 years. Has testified before U.S. Congress in Washilngton, D.C. on chld support issues.
The authors and presenters will discuss each bill and explain the formula and the differences from the current child suupport system. There will be discussion of H.F.664 and corresponding provisions of H.F. 778 (Sections 11-17, Article 3).
An opportunity to ask questions will be available at the end of the program.
1.5 hours of Standard CLE credit to be applied for. There is not need to RSVP.
Thursday, December 11, 2003 12:00 - 1:30 p.m. MSBA Offices ~ Honors Room Third Floor, City Center, 600 Nicollet Mall, Minneapolis
Please join us for this informative presentation. Don't miss out on the opportunity to beetter understand these formulas before it becomes law!
Contact your attorneys and legislators. Ask them to attend. The first CLE class you attend is free. Call (612)-333-1183 to register.
Hennepin County trying to stop nasty, costly divorces
H.J. Cummins, Star Tribune
Published November 3, 2003
A middle-class couple in Albert Lea -- he is an ophthalmologist and she is a nurse -- are about to show how to spend close to a half-million dollars to get a divorce.
David and Lee Sutton's divorce decree was issued in May. It ended a 19-year marriage that included two children, and it has cost hundreds of thousands of dollars. And with the case on appeal, there are no final bills yet.
The amount spent is extraordinary, said several lawyers and judges, who said even contentious divorces usually cost no more than $70,000 in Minnesota. But the Suttons' issues -- money and children -- are completely ordinary, they said.
That's why two new programs in Hennepin County Family Court are aimed at thwarting financial and custodial disputes from driving divorces out of control.
Both programs front-load cases. A couple meets with a judge and the court's custody evaluators within three weeks of the divorce filing.
The effort is to set a cordial and expeditious tone before either side invests much time, money and hard feelings in the legal process.
Legal experts across the country called the programs a promising combination of ideas to try to settle divorces faster and friendlier. Admittedly driven partly to save courts money, the speedup is also good for families, said Peter Salem, head of the Association of Family and Conciliation Courts in Madison, Wis. "Early settlement is better for a whole lot of reasons," he said.
The Sutton case
David Sutton doesn't think those tactics would have abbreviated his divorce. The decree shows the costs growing over three years, with an incomplete tally of more than $330,000. David Sutton's list came to more than $411,000. Both sides show about $300,000 in attorneys' fees, with the rest going to three custody evaluators, a children's advocate called a guardian ad litem, an estate valuator, a vocational evaluator and a real-estate appraiser.
The couple had eight unsuccessful mediation sessions. The case had nine court hearings -- several because David Sutton fell behind in maintenance payments -- before culminating in a seven-day trial. He had three different lawyers and now represents himself.
The decree gave Lee Sutton sole custody of the couple's teenage children, and about $4,500 a month.
David Sutton said one reason that he keeps fighting is to try to persuade the court that he can't afford the payments. He describes his experience as being "accused of being a deadbeat dad, and then being turned into one."
The decree's calculations of his earnings and assets conclude that he can make those payments. As for the custody, it notes that all four experts consulted, including one hired by David Sutton, recommended custody go to the mother.
The process, the cost
Minneapolis family law attorney Steven Schmidt said there is a lot of money to be saved for couples who keep personal acrimony out of their divorce.
Schmidt said a couple in one of his current cases, involving children and earnings in the millions of dollars, will probably spend only about $10,000 each on their divorce because their relations are amicable. If accusations start, that figure would quickly jump to $50,000, he said.
One growing cost is custody evaluations. Most start at $2,000 to $5,000, but some have run as high as $30,000, attorneys said.
Several Minnesota judges and lawyers also said there are some lawyers and litigants who stoke conflict in cases. All the due-process protections in the law -- the right to develop evidence, to employ experts and to argue their perspectives -- make it hard to enforce restraint, these experts said.
The new programs in Hennepin County are an attempt to prevent problems by putting divorces on a fast track, including meeting with a judge within three weeks of a divorce filing.
Presiding Family Court Judge James Swenson said he has only anecdotal evidence that the early meetings with the judge make a difference.
But the court has data on the custody piece, and it's encouraging: Of 30 cases in a summer pilot program, 17 couples otherwise headed to a courtroom managed to resolve their differences, most of them before they left the initial meeting, according to Gunnar Bankovics, division manager of Hennepin County's Family Court services. Six resolved some of their differences, leaving fewer issues to take to the judge, Bankovics said.
Swenson and Bankovics described the process this way:
The judge, who will stay with the case to the end, meets with the divorcing couple and their attorneys. He stresses the benefits of working out their differences themselves: They save money, protect their children and avoid giving away control of their lives to him. He sketches a series of deadlines to complete the case without a trial and encourages the couple to keep their attorneys on schedule. He instructs the attorneys to share information informally, rather than to litigate for access. And he works for quick agreement on all financial and parenting arrangements for the family until the case is finished.
For example, if a husband wants to fight over a monthly support payment to his wife that he thinks is $500 too high, Swenson will say, " Look, I can finish this case in four months. You're talking about $2,000. An attorney can barely open his briefcase for that. "
Then the couple meets with the court's custody evaluators, always one man and one woman, for what is called an early neutral evaluation. The team asks what kind of things that the children look to each parent for, also what each parent's wishes and concerns are. They talk to the parents about the basic legal and child development principles that guide custody decisions.
After all that, Bankovics said, the evaluators tell the parents, "Now we're going to give you some candid feedback to help you make your decisions."
Family law attorneys in other parts of the country said their courts use some pieces of the Hennepin County model, one judge per case, and speedy timetables, for example, but they have reservations about others.
"Informal trading of information is one of those things I would be willing to do with some lawyers and not with others," said Mary Jo McCurley in Dallas, vice president of the American Academy of Matrimonial Lawyers. "You have to have a certain amount of trust for the other side," she said.
In New York, Barbara Handschu had concerns about the fast, early custody evaluation. "Speed could undo thoroughness," said Hanschu, president-elect of the academy. "I'd want to know if people come back six months or a year later, feeling something has been foisted on them."
The flip side, Bankovics said, is the trouble that passing time can make: "We know that the continuation of conflict between parents is the most destructive thing to children. We also know that the longer people spend in conflict the harder it is to resolve."
The other time issue is the courts, he said: "If we don't start to focus our energy on these alternative . . . methods, we're not going to be able to handle all the cases that come through."
Child support overhaul criticized at House hearing
Jean Hopfensperger, Star Tribune
Published October 29, 2003
A plan to overhaul Minnesota's child support system by recalculating the way the state determines payments drew criticism as unrealistic during a House committee hearing Tuesday. However the plan's architect said it was more fair than the current system.
The plan proposes a number of changes, including:
- Allowing noncustodial parents to set aside a portion of their incomes, slightly more than the poverty line, before calculating any support.
- Basing the support on the income of both parents, instead of the income of only the noncustodial parent.
- Linking child support to the amount of time a parent spends with his/her child.
The architect of the plan, Georgian economist R. Mark Rogers, said it offers an "economically sound" way to calculate child support payments. For the first time, payments would be based on research on the cost of raising children, instead of the income of the noncustodial parent, he said. And it would be more fair to both parents, he said.
But critics charged that the plan didn't reflect the real cost of raising children. They said it could significantly reduce child support granted to many families, and it might not comply with federal guidelines. Plus the plan is tremendously complicated, they said.
"The state will have to put satellite offices of H&R Block in every child support office," said Donald Enockson, chairman of the family law section of the Minnesota Bar Association.
The plan, which was introduced last session, is one of at least two that the Legislature will hear in 2004, said Rep. Mary Liz Holberg, R-Lakeville, chairwoman of the House Civil Law Committee.
Holberg said that child support is a high priority issue in the House Republican caucus. Indeed, broad interest was evident Tuesday in a hearing room packed with people waiting to testify or simply monitoring the issue.
Holberg said she hoped to glean some "guiding principles" for changing the child support system from Tuesday's hearing, as well as from others in the future.
But the bill was uniformly opposed by those who testified. They included a family mediation expert, family law attorneys, a child support consultant to the Minnesota Department of Human Services, and an advocacy group for parents not receiving child support.
"It's going to reduce the amount of child support, inundate a [child support] system that already is struggling and push more parents onto public assistance," said Jen Peterson, who heads a local chapter of an organization that tries to get noncustodial parents to pay child support called ACES -- Association for Children for Enforcement of Support.
The bill was supported by fathers' rights groups such as R-Kids, which did not testify Tuesday. Tim Kinley, president of R-Kids, said he supports the bill because it is based on the cost of raising children, rather than the noncustodial parents' income, and because it would encourage both parents to stay involved in their children's lives.
"Right now there is a cost incentive [for mothers] to leave, rather than get through difficult times and stay together," he said.
The bill, H.F. No. 664, may be viewed at the Legislature's Web site at http://www.leg.state.mn.us and clicking on "Legislation and bill status."
Mother who hid her child won't serve time
BY HANNAH ALLAM Pioneer Press October 8, 2003
A woman who kept her now-7-year-old daughter hidden for more than two years in a St. Paul home with the drapes closed won't serve time in prison unless she breaks the law again, according to the sentence handed down Tuesday by a judge who called the case "a tragedy for all the members of this family."Patricia Bergstrom-Lowe, 40, received a stayed sentence of two years on a charge of deprivation of parental rights for keeping the girl away from her father for two years and nine months. Ramsey County District Judge Gregg Johnson said he doubled the yearlong stayed sentence recommended in state guidelines because of the girl's age and the high level of planning that went into the crime.With a stayed sentence, Bergstrom-Lowe won't serve time unless she fails to follow the law and complete the judge's additional orders of a mental health evaluation and 200 hours of community service.Elluara Catherine Marie J. Lowe was told that her father, 45-year-old Dean Lowe, was dead until they were reunited after authorities rescued her from the parking lot of a Sam's Club in Eagan in November. Lowe has full custody of the girl, though Bergstrom-Lowe has taken steps to restore visitation."During all this time there was never a day that went by that my heart did not ache for my daughter, and the loneliness was immense," Lowe wrote to the judge. "Not knowing where she was or if she was alive. I have lost so many precious days with Elluara that I can never get back."Wearing a black corduroy dress and speaking in a tiny, wavering voice, Bergstrom-Lowe said that she knows what she did was wrong and that she is seeking counseling. Her attorney, Joy Bartscher, said the child was treated well and deserves to maintain a relationship with Bergstrom-Lowe. Visitation questions will be resolved in family court."Denying the child contact with her mother is also going to have a permanent impact on the child," Bartscher told the judge.Attorneys who specialize in parental deprivation cases said they were shocked Bergstrom-Lowe did not receive time behind bars. Maury Beaulier, an Eden Prairie attorney who has represented both men and women in such cases, recalled two male clients who received jail time for keeping their children for shorter periods than Bergstrom-Lowe."There is absolutely no doubt there's a double standard when it comes to children and fathers' rights," Beaulier said. "I'm not sure you can find huge patterns, but you can find discrepancies."In March 2000, Bergstrom-Lowe sent her ex-husband a letter saying she was taking Elluara to Poland to "learn another culture." Neither the child nor the mother had any known family connection to Poland, and the couple were supposed to share joint legal custody.For more than two years Elluara didn't go to school and had no young friends, according to Ramsey County authorities. Elluara was kept at her grandmother's house in such secrecy that neighbors told police they had no idea a child lived at the home on St. Paul's West Side. Bergstrom-Lowe's attorney disputed that account in court Tuesday, offering to show the judge an album said to contain photos of Elluara at birthday parties and the Como Zoo during the time she was kept from her father.In November, Ramsey County authorities staked out the home of Elluara's 66-year-old grandmother, Patricia Ilene Bergstrom, and watched as the woman bundled packages into a car and drove away. After a few minutes, two other heads popped up from beneath blankets, investigators said. At Sam's Club, deputies arrested the women when they got out of the car. Investigators found a loaded .38-caliber handgun in a bag in the women's car and two more handguns and two rifles in the home in the 700 block of Smith Avenue where the girl had been hidden.The grandmother was arrested on charges of harboring or assisting a fugitive. She was in the courtroom Tuesday with several other relatives, who declined to comment on Bergstrom-Lowe's sentence
Former human services official arrested in child support case
Pam Louwagie, Star Tribune Published September 16, 2003
For nearly four years, part of Francis Giberson's job was to oversee the state department that went after parents eluding child support payments. Now, federal prosecutors are hauling Giberson into court, alleging that he has eluded authorities and his own court-ordered payments to support his two children.
Giberson, a lawyer who was deputy commissioner of the Minnesota Department of Human Services in the mid-1980s, is accused of owing more than $108,000, according to a criminal complaint.
His ex-wife, Judith Brooks of Bloomington, said she remembers that when her husband worked in state government they talked about deadbeat parents.
"He hated it," she said. "He thought it was pretty despicable."
Authorities arrested him last week in Las Vegas.
His arrest was part of a coast-to-coast sweep of parents delinquent in paying child support, and Giberson was cited as a top example in the effort to crack down on deadbeats. He was being held without bond, and a judge ordered that he be brought to Minnesota to appear in court, Assistant U.S. Attorney Frank Magill said.
Giberson, 56, was second in command at Minnesota's Human Services Department from 1983 to 1987. Court papers said he left the state in about 1990 and worked for a company in New York.
In October 1991, he was ordered in Hennepin County District Court to pay $1,200 a month in child support, according to a law enforcement affidavit attached to a federal criminal complaint.
According to the affidavit: Giberson claimed to work as general counsel in the New York company for no salary, receiving only living and business expenses. He said he wouldn't be able to pay child support until the company completed international projects that would produce dividends for Giberson. He left the company in 1995 without reporting dividend earnings to authorities.
Giberson was arrested at some point in Suffolk County, N.Y., on suspicion of failing to pay child support, but he was released because of an error on the arrest warrant. By the time the warrant was reissued in May 1996, Giberson had left New York and authorities couldn't find him, the affidavit says.
Giberson had made sporadic payments, but the last was in 1996, according to federal authorities.
He was stopped for a traffic violation in North Las Vegas, Nev., in February, and an officer found he was carrying identification with a false name. He told the officer he used the false identification for work to avoid paying child support, the affidavit said. Giberson also registered a van using his father's name, according to the affidavit.
The Minnesota Supreme Court suspended Giberson's license to practice law in Minnesota in 1998 for failure to pay child support and spousal maintenance.
Authorities believe he was recently employed at a delivery service in Las Vegas, according to the affidavit.
The sons that he had with Brooks lived with her in Hennepin County. The youngest left for college in August, the affidavit said.
Brooks said it was difficult to raise the children, now 18 and 24, without the financial and parenting support of their dad. She had been a stay-at-home mom, but she started working and sending the children to day care, she said. Like other single parents, she struggled to do it all.
"There was day care and school and trying to do sports and long commutes," she said.
In the Department of Human Services, Giberson worked under Commissioner Len Levine and was the official in charge of day-to-day operations of the state's largest agency. Along with child support collections, he oversaw health and welfare programs, nursing homes and state hospitals. He resigned to return to private law practice, telling the Star Tribune then: "I never intended to make government a long career."
Levine, who left the department in December 1986, said Monday that he had not had any contact with Giberson since then.
"I often wondered what happened to him," Levine said. "He worked very hard and he was very bright. He was highly regarded for his financial ability."
Wayland Campbell, the current director of the department's child support enforcement division, said that Giberson was singled out for federal prosecution, not because of his former occupation, but because his failure to meet his obligations was so egregious.
"He certainly can't claim that he was ignorant of his responsibilities," said Campbell, who was a low-level division official when Giberson was deputy commissioner. "I suppose there might be people in Minnesota who owe more money, but he's pretty near the top."
Giberson was one of 44 people arrested recently in the federal government's second nationwide sweep to find the nation's most-wanted deadbeat parents. The government is still seeking 38 parents for whom arrest warrants or summonses were issued, according to the Office of the Inspector General of the U.S. Department of Health and Human Services. Last year, the government announced the arrest of 70 parents in a five-day sweep.
Brooks said she and her sons didn't expect Giberson's arrest to be so widely publicized, but because it is, they hope others can take a lesson from it.
"The accountability is important," she said. "Society sets a limit and this isn't what you do to your kids."
The Peace Initiative
I am a proponent of joint, but it has to have some teeth for those that would use false allegations to get sole. (like automatically giving sole custody to the other parent when one makes an unsubstantiated abuse allegation of the other).
I am interested in helping the fight. I have put together a website dedicated to the presumption of joint physical custody. You can read the text of the bill I adapted from UPREPA on my site.
Link to my main page is here:
http://thepeaceinitiative.tripod.com/
Read the page entitled "What we need to do"
http://thepeaceinitiative.tripod.com/aboutthepeaceinitiative/id4.html
Our problem is going to be fighting the bar association itself in passing this legislation. They know how their bread is buttered and it is not by resolving things peacefully.
Parents Establishing Access to Custodial Equality.
Mick michael.a.fry@kodak.com
Case law review
A03-265 Lorie J. Long, f/k/a Lorie J. Creighton, petitioner, Appellant vs. Michael J. Creighton.
Hennepin County. Hon. James T. Swenson.
- Minn. Stat. § 518.64, subd. 2(d)(2) (2002), permits a modification of child support to be retroactive to a date prior to service of the notice of motion for modification if the district court expressly finds that the party seeking modification was a recipient of public assistance based on need during the period for which retroactive modification is sought.
- A stepparent has no legal duty to provide support for his or her stepchildren and it is an abuse of discretion for the district court to make a stepparent responsible for the expenses of his
or her stepchildren.
- Child-support guidelines are not to be mechanically applied, and a parent who provides the sole support for children of the same marriage in two homes is entitled to an appropriate downward deviation of guideline child support in recognition of the support provided to the children of the same marriage living in that parent's home.
(temporary) Griese v. Kamp, C8-02-2281
Date Filed: 2003-07-29 Court: Minn. App. published Decision: Reversed and remanded; motion granted Reviewed by: MSBA Categories: Custody, Civil Procedure
On appeal, Appellant-father challenged the district court’s decision denying his motion to modify custody without first holding an evidentiary hearing. The Court of Appeals reversed and remanded and granted Respondent-mother’s motion to strike part of Appellant’s appendix.
Appellant filed a motion to modify custody. In support of his allegations of endangerment, he submitted affidavits by himself, the maternal grandparents (with whom the child and Respondent lived), and Respondent’s ex-boyfriend. In his affidavit, Appellant expressed concerns for the child’s safety and recounted the child’s statements regarding Respondent’s use of drugs. The grandfather’s initial affidavit included statements that Respondent used drugs frequently, had an extensive drug problem, exposed the child to situations involving drugs and “puts the child in extremely dangerous situations.” The grandmother’s initial affidavit addressed similar concerns and further stated that Respondent’s problem had escalated and the child would be harmed if she remained in Respondent’s custody.
Two weeks later, the grandparents filed additional affidavits in which they qualified and directly contradicted portions of their initial affidavits. The grandparents minimized their direct knowledge of drug use, indicated they had no proof of Appellant’s drug use and stated that they did not think that their statements in the initial affidavits “would be used to take [the child] away from [Respondent] on a permanent basis.”
The district court denied Appellant’s motion to modify custody without holding an evidentiary hearing. The court reasoned that, although the affidavits of Appellant and the ex-boyfriend, together with the initial affidavits of the grandparents, established a prima facie case to require a hearing, the court “could not take the initial affidavits as true because they were ‘directly contradicted, explained and/or compromised, by subsequent affidavits of the same individuals.’”
The Court of Appeals rejected that reasoning and conducted a de novo review because the affidavits were available in the same form to the appellate court. A court must accept the moving party’s affidavits as true. If a factual dispute as to endangerment exists, the court must hold an evidentiary hearing. Additionally, the movant need not corroborate allegations with independent evidence. A court must disregard directly contrary affidavits and may only use an opposing party’s affidavits to “explain the circumstances surrounding the accusations.” Thus, the district court erred by taking as true the grandparents’ second set of affidavits and should not have given weight to any directly contradictory evidence. The Court of Appeals analogized the situation to summary judgment, where “subsequent testimony cannot serve to fully eliminate the effects of” initial testimony.
Dorman v. Steffen, C0-02-2274
Date Filed: 2003-07-29 Court: Minn. App. published Decision: Affirmed Reviewed by: MSBA Categories: Paternity, Jurisdiction
On appeal, Appellant-alleged father challenged the district court’s denial of his motion to dismiss paternity proceedings. The Court of Appeals affirmed.
Respondent-mother was married at the time the child was born. After dissolution proceedings were started, Respondent’s husband obtained a blood test that showed he was not the child’s father. The dissolution decree contained findings that the husband was not the biological father and was not responsible for the child’s support, but it did not declare the nonexistence of the parent-child relationship. When the county, Respondent and the child later petitioned to establish paternity, both the husband and Appellant, who Respondent alleged in an affidavit was the child’s father, were named as defendants. The district court denied Appellant’s motion to dismiss the paternity proceedings and ordered Appellant to submit to a blood test.
The Court of Appeals affirmed. The Court rejected Appellant’s argument that the county did not have authority to bring the paternity action where the husband, as the originally presumed father, was now time-barred from seeking a declaration of nonexistence of the parent-child relationship. First, actions to establish paternity can be brought at any time. Second, all of the plaintiffs were expressly authorized by statute to bring an action “to declare the existence of the father-child relationship presumed by a blood test.” Third, the action was not an improper attempt to declare the nonexistence of the husband’s parental relationship, but simply an action to establish parentage and support.
Additionally, the district court had jurisdiction to order genetic testing. The plaintiffs may bring an action “to establish a presumption of paternity in the putative father and may compel him to submit to a blood test to establish that presumption.” Respondent’s affidavit was sufficient to create a presumption of paternity. It is irrelevant that another presumed father existed. As contemplated by Minn. Stat. § 257.55, subd. 2, the court will determine which presumption “is founded on the ‘weightier consideration of policy and logic.’” Appellant could not avoid a paternity test based on public policy arguments involving the presumption that the husband was the father. Furthermore, the child had a “critical, fundamental right” to establish the parent-child relationship.
In re: Strandberg v. Strandberg, C6-02-2246
Date Filed: 2003-07-22 Court: Minn. App. published Decision: Reversed and remanded Reviewed by: MSBA Categories: Child Support
On appeal, Appellant-father challenged the district court’s child support order and refusal to consider the child’s adoption subsidy as an available resource of the child. The Court of Appeals reversed and remanded.
When the parties separated, Respondent-mother had physical custody of the child and, therefore, received the adoption subsidy. Based on stipulated facts, a child support magistrate (CSM) later determined the issue of child support. Those facts included: Appellant had higher income when the parties separated, then lost his job and became reemployed at a lower income level; Respondent received a monthly adoption subsidy; Appellant did not pay child support for 10 months before the dissolution; and the parties’ reasonable monthly expenses and income. The CSM determined Appellant was not entitled to a downward deviation from the child support guidelines and that the state adoption subsidy could not be considered in setting his child support obligation. The district court conducted a review and affirmed.
The Court of Appeals reversed because the district court should have considered the state adoption subsidy. Minn. Stat. § 518.551, subd. 5(c)(1) and (2), require the court to consider the financial needs and resources of the child when setting a child support obligation. The Court noted a previous ruling that state adoption subsidies are a resource to consider for purposes of reimbursing the county for the cost of out-of-home placements. The current holding did not conflict with Minn. Stat. § 259.67, subd. 9, which states only that receipt of the subsidy does not affect eligibility for any other financial payments. Furthermore, the child support statute also requires consideration of “all earnings, income, and resources of the parents.”
The Court noted that consideration of the subsidy is particularly reasonable where, as here, the obligor cannot cover his own expenses. The Court further stated that the subsidy “should not be treated as a mandatory offset to child support or an automatic reduction of the guideline amount,” but how the subsidy affects the obligation “depends on the needs of the child and the financial circumstances of the obligor and obligee.” On remand, the district court must make adequate findings regarding the needs and resources of the parties involved.
In re the Custody of: E.V.N., CX-03-381
Date Filed: 2003-10-14 Court: Minn. App. unpublished Decision: Affirmed Reviewed by: MSBA Categories: Custody, Civil Procedure
On appeal, Appellants, the child’s maternal grandmother and her husband, challenged the district court’s award of custody to Respondent-father. The Court of Appeals affirmed.
The child lived with her mother in Sweden for six years and then returned with her mother to Minnesota to live with Appellants. Respondent stayed in contact while the child lived in Sweden and the child eventually began spending every other weekend with him once she returned to Minnesota. After the child’s mother was killed in a car accident, this custody dispute arose. Following a trial, the district court found the parental presumption entitled Respondent to sole legal and physical custody of the child.
The Court of Appeals found no abuse of discretion in the district court’s order and rejected Appellants’ argument that the district court improperly failed to consider the child’s best interests. If one parent dies, the other parent is entitled to custody unless that presumption is “overcome by extraordinary circumstances of a grave and weighty nature.” Such a determination does not require a best-interests analysis.
The Court found no evidence “of a grave and weighty nature” disallowing the presumption where Appellants merely argued that a change in the child’s environment would adversely impact her, that her Swedish heritage would not be sufficiently included in her life with Respondent, and that Respondent had not had much involvement with the child until she moved to the United States. Furthermore, the district court considered the best interests factors and found they favored an award of custody to Respondent.
The Court also rejected Appellants’ claim that the district court’s findings were not supported by the record. Although the Court acknowledged that verbatim adoption of one party’s proposed findings raises a question regarding the district court’s independent review of the evidence, it was not sufficient to require reversal.
In re: Ehlen v. Putz, C4-02-2147
Date Filed: 2003-07-22 Court: Minn. App. unpublished Decision: Affirmed Reviewed by: MSBA Categories: Child Support
On appeal, Appellant-father challenged the order of the child support magistrate (CSM) setting Appellant’s child support obligation and determining his past support obligation. The Court of Appeals affirmed.
This appeal involved a paternity action. The CSM determined Appellant’s past support obligation, giving Appellant a credit of $12,000 for amounts he had contributed to the child’s expenses and applied a 15 percent upward deviation to the guidelines child support amount.
The Court of Appeals found no abuse of discretion in the CSM’s order or the district court’s confirmation of the order. First, the district court (a) did not require the CSM to apply the original $10,000 credit to any other applicable credits when determining the past support owed, (b) agreed that Appellant’s expenditures for the child’s life insurance, the Gifts to Minor Account and the educational IRA were voluntary gifts that did not affect the past support owed, and (c) noted Appellant had the responsibility to pay a large part of the child’s healthcare, regardless of his child support obligation, so need not be credited for the entire amount he claimed to have paid for healthcare.
Second, the CSM followed the district court’s order not to include Appellant’s partnership income in computing his net income. In determining his net income, the CSM used Appellant’s most recent, completed tax returns, but ignored the line labeled as income from “Rental real estate, royalties, partnerships, S corporations, trusts, etc.” Appellant’s income was difficult to calculate, so the CSM properly considered Appellant’s “relatively extravagant lifestyle” and could conclude that it was “more luxurious than his claimed income could support.” The Court of Appeals also found no abuse of discretion in the CSM’s exclusion from Appellant’s income of certain travel and business expenses, which it found excessive.
Third, the CSM and district court made sufficient findings to support the 15 percent upward deviation from the child support guidelines. The district court addressed the parties’ incomes and expenses and found that the parties and child lived together for one year. Because Respondent-mother received medical assistance and was unable to sustain the child’s accustomed standard of living and because Appellant had the ability to help sustain that standard, the district court had discretion to order an upward deviation from the guidelines.
C1-03-172 In re the Marriage of: Gail P. Bender, vs. Alan Paul Bender.
Court of Appeals (published) Filed November 25, 2003
When parties enter a parenting plan pursuant to Minn. Stat. § 518.1705 (2002), but do not use a traditional description of the custody arrangement, the district court’s description of the custody arrangement as sole or joint physical custody is binding for purposes of child support.
FROM THE AUGUST ABA JOURNAL
THE NATIONAL PULSE COSTLY KIDS Several Cases Claim Child Support Formulas Are Unconstitutional
BY STEPHANIE FRANCIS WARD
They may seem like only a few flakes, but five state cases challenging child support laws on constitutional grounds may foster a flurry of such suits, advocates for noncustodial parents say.
They say child support models are grossly unfair and some day may be struck down, despite recent losses in Tennessee and Georgia.
“Eventually, there will be a situation where the outcome will be egregious enough that the courts will take notice,” says Michael L. Oddenino, an Arcadia, Calif., attorney who handles family law matters. Child support guidelines, he says, were hastily drafted to comply with the Federal Family Support Act, a 1988 law that requires each state to set numerical child support guidelines.
However, other experts see less than a snowball’s chance for such claims. Erwin Chemerinsky, a constitutional law professor at the University of Southern California, doubts they will succeed past trial.
“The bottom line is courts have to award child support to ensure care for children,” Chemerinsky says. “So long as it’s not gender discrimination, and it’s rational, it’s going to be upheld.”
Still, Oddenino believes some state statutes are vulnerable. “Some weren’t drafted with the most care in terms of compliance and constitutional due process requirements,” he says. “Eventually, because of a well-crafted constitutional challenge, where the facts work well, you will see something adjusted in the guidelines, or you will see legislation come around.”
While constitutional arguments worked at the trial level in Tennessee and Georgia, the states’ high courts recently rejected them.
In the Tennessee case, a married man who fathered a child out of wedlock had argued the support order did not give him credit for the amount he spends to support three children who live with him. Yet he would get credit if an existing decree required support. The Tennessee Supreme Court found that the state has a rational basis for this distinction because children who live with their parents benefit from the parent’s lifestyle.
The court also found no due process problem, since no fundamental right is implicated and it is rational to base support payments only on income. Gallaher v. Elam, No. E2000-02719-SC-R11-CV (May 2).
VIOLATION OF PRIVACY? in the georgia case, a noncustodial mother of three also had claimed that guidelines violate her privacy rights because they dictate how much money she must spend to support her children. The Georgia Supreme Court said there is no privacy interest in the way support is determined. It also found that custodial and noncustodial parents are not similarly situated, so there is no equal protection violation. Georgia Department of Human Resources v. Sweat, No. SO3A0179 (April 29).
Two Minnesota cases are pending in the state’s district court with Burnsville lawyer Mark A. Olson representing both noncustodial parents. Olson did not return phone calls seeking comment. A trial judge recently dismissed a third case handled pro se. The litigant filed an appeal and sought pauper relief with the court, which denied his request.
Janice Allen, chief attorney of the Anoka County, Minn., family law division, works on one of the pending cases. “I am befuddled, quite frankly, that they’re still bringing the challenge because I don’t know what in the world they can succeed on that they didn’t succeed on in Tennessee and Georgia,” she says.
So far, most of the constitutional challenges are filed in states where the award is based on a percentage of the noncustodial parent’s income. The alternative method is a shared-income model, under which the court asks for both parents’ incomes. The award is usually the same with both calculations, says Charlottesville, Va., lawyer Laura Morgan, because the percentage model also considers both incomes.
Morgan, who chairs the child support committee of the ABA’s Family Law Section, says the constitutional arguments will not succeed. However, she suggests that perhaps the percentage-income model should be dropped since it is perceived as more unfair.
“When you have a greater perception of fairness, you have a greater compliance rate,” Morgan says. “I am enough of an idealist to think that most noncustodial parents love their kids and want to do right by them. And they want to be treated fairly.”
DHS data on individuals
Good day:
This letter is to further encourage you to request and review information collected by DHS on you. The collected data/information WILL include details about YOU. It is important to make sure you know what is in this file and furthermore, this data request project is being used to expose DHS and their inappropriate and likely illegal collection of data on each of us.
There are some key pieces of information that we are asking that you review and provide feedback. There are other pieces of information, which you will want to document for yourself. We have no interest in reviewing personal and sensitive details about your case.
Last Friday, August 15th 2003. I was asked to leave the DHS building while I was trying to assist an individual who had requested to review his personal data. Although this individual had full authority, based on the definition of a legal parent to review this data and further ask me to assist, I was told that the other parent had not given permission for me to assist with reviewing the PRISM/CAD notes. It has become obvious that DHS is discouraging individuals from accessing and reviewing personal data.
One way to avoid this problem (If you want assistance with case note understanding is to NOT request data on your child) The child's information has been basic information like names, birth dates and SS #. This information, for our purposes, is not significant
Your data file will include information regarding: Child Support Case notes, All payments and financial info, E-mail Correspondence (These are the behind the scene comments)
It is important to capture: Any and all derogatory statements in your file? Any documents that question what they are doing (incompetence) Any thing that you know is not accurate, The IV-D application that authorizes DHS to gather data on you and your family.
When you go to view your data @ DHS, A security guard will lead you to the location to access your data. You are aloud to mark the pages you desire copies of and In a day or so they will get to making your copies. If you have a question as to the meaning of the data, (which is your legal right) DHS wants the questions in writing and they will get back to you in a day or so.
DHS continues to develop or change policies and rules as individuals exercise their right to access information related to their family.
You might want to let DHS know in writing, you cannot afford to pay .15 per requested copy.
As part of this effort, we have found that there is a reluctance to provide information, in each of our files. As we continue to accumulate data requests, and if we continue to have difficulty obtaining important information, we may need to involve an attorney for legal assistance to obtain full disclosure.
It is important to gather as many data requests as possible. Your participation in this effort is very important. This is information collected about you. Ultimately, we want to see every individual request this information on a regular bases. Please respond with an update on your progress.
"Please" respond with an update on you progress. When was your request mailed? Have you received a letter stating when your file will be ready for review? Have you already reviewed your data? Please provide a date when you expect to be done. (Keep a file on all correspondents)
PEOPLE ARE AVAILABLE TO ASSIST YOU AND MORE REQUESTERS ARE NEEDED!
Sincerely, Terry Nyblom (651) 490-9692
DHS's Instructions for In-Person Review of Private Data
- Location for review of documents: A staff person will escort you
to a workspace where you may access the private data that you requested.
- Explanation of computer-generated records: In addition to this
instruction sheet and stationary and other supplies for your use, when you come in to review the documents, you will be provided with written explanations of computer-generated records (if any) for MAXIS, PRISM, and MMIS. You may not keep, remove, deface, or otherwise alter these instructions. Upon your request, a copy of these explanations can be obtained.
- Preservation of documents containing private data: You may not
keep or remove from the building any of the original documents that have been provided for your review. Please do not deface or otherwise alter any of the data.
- Requesting copies of documents: You may request copies of
documents. You may be charged only the actual and reasonable cost for making, certifying, and compiling the data. In addition to actual staff costs, the cost of "making" the copy includes a charge of $.15 per page. You will be advised of the fee associated with copies you are requesting after the Department reviews your request and determines the cost. Payment must be made at the Information desk in the lobby when you return to pick up the copies. Please mark each separate and single page you wish to have copied with a Post-it flag from the supply provided to you. Please mark each set of consecutive pages you wish to have copied with a Post-it flag on the first page and clip the consecutive pages together in order behind the first page. Leave the flagged pages with the Information Desk when you leave.
- Questions about the data: Due to workload considerations,
department staff cannot be available to answer questions about the data during the time you are accessing the data. However, you may submit questions in writing. Paper and a pen have been provided for you. The answers to your questions will be mailed to you as soon as reasonably possible. Please leave your written questions at the Information Desk when you leave.
Thank you again for contacting the Minnesota Department of Human Services.
Letter to the Editor re: Anoka County
Hi Mr. Theisen. I live in Anoka County (in fact, in the city of Anoka) and I was divorced three years ago and, from my own personal experience and anecdotal experience from others, have always wondered if this county is different in the way the judicial system (specifically judges and custody evaluators) view a man's role both before and after the divorce. Do their judgments differ markedly from other counties judgments in regards to custody, child support and spousal maintenance? Is there an independent state judicial review board that certifies that they are consistent with statute and not deviating significantly from the norm? Thanks for taking the time to answer my question.
TM
Editor replies:
Anoka County has a strict policy that they will not allow joint physical custody, unless (a) the parties agree on it, and (b) you get approval from court services (an all-female bureacracy). I don't know if it's a written policy or not, but it's pretty well-known. Since many men think that JPC is a decent compromise, I guess that could be deemed an anti-male policy. So while it is really a procedrual rule, the fact is the substantive law is different in Anoka county than it is in the other 86 counties of the state. As far as any state board, I'm not really sure. Of course, there's always the Court of Appeals, but people usually don't appeal if the judge simply turned down their stipulation for JPC. If court services approves, you'll get it, if court services doesn't, you wouldn't have much grounds to appeal. So there's really no realistic avenue for getting this peculiar Anoka County policy reviewed by someone at the state level. I suppose, if a couple agreed on JPC, and the judge refused, and they didn't want to go to court services, they could request a trial, have the judge turn it down, and then appeal. If Anoka County has a written policy, that would then be brought before the court of appeals. If they don't, one would want to memorialize that policy, perhaps by deposing the head of court services. I've never had the right case where clients wanted to spend $5000 and delay their divorce, just to take on the judges of Anoka County and help the next people in their shoes - usually there's a better route, so the problem endures. But otherwise, I can tell you that both men and women can get screwed in Anoka County, just as in any other county.
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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