The Role of Mediation in Minnesota Divorce

As I have written about in the past, mediation is an important component of the divorce process in Minnesota courts. There is also another process that is similar, but different. This process is known as “Early Neutral Evaluation.”

What is the difference?

In mediation, the role of the mediator is to help the parties reach an agreement. The mediator tries to understand each party’s position, and why it is that the party has that position. The mediator then tries to help the parties come to an agreement by making a bargain that gives each party at least part of what it is they would like to achieve.

Mediation is confidential, which means that the things that are discussed are not allowed to be brought up in court. And, if mediation is unsuccessful, the mediation is concluded without comment by the mediator.

The Early Neutral Evaluation process adds at least one element that mediation does not have. If, at the end of the session, the parties have not reached an agreement, the evaluator will give an opinion as to what he or she believes that court would likely do, if the case came to trial. This opinion is also confidential. It cannot be discussed in court. It is intended to give the parties the benefit of the perspective of an unbiased third party.

There are two kinds of Early Neutral Evaluations – “Social” Early Neutral Evaluations, which deal with custody and parenting time, and “Financial” Early Neutral Evaluations, which deal with support, maintenance, and division of property.

Sometimes a couple who is divorcing will go to both kinds of ENEs, and sometimes they will only go to one. It depends upon what their issues are.

I am an attorney licensed to practice law in Minnesota. I have practiced family law for over 20 years. I have been named a “Super Lawyer.” My own thoughts about mediation and ENEs are as follows:

1. I think that if you are going to mediation or to an ENE, you need the advice of an attorney. You cannot bargain effectively unless you know what the law is, and how the law will be applied to your facts. Mediators and ENE evaluators will not practice law for you, they will not give you legal advice, and if you give up more than you need to, they will not care, as long as the case is settled.

2. Sometimes mediation is appropriate. Sometimes the ENE process is appropriate. Sometimes neither process is appropriate. I have been involved in cases in which the opposing party is very angry and wants to punish his or her spouse. That party may use mediation solely as a way to cause the other spouse to spend more money than he or she needs to spend (mediators and ENE evaluators need to be paid). This unethical, but it is fairly common and there is no effective remedy.

3. Especially before financial mediation or a financial ENE takes place, you need to know everything that can be known about yours and your spouses finances. You and your attorney need to review bank statements, check book ledgers, paycheck stubs, and tax returns. You need to know what your retirement assets are worth. If there are pre-marital components to your assets, you need to know what these are worth. Otherwise, mediation and the Financial Early Neutral Evaluation can be a waste of time.

4. Most importantly, you need to have a sense of “proportion.” In other words, how much do you want to spend – in mediation or litigation – to achieve your goals? If you have a marital estate worth 5 million dollars, then it makes sense to spend an adequate amount of money to trace marital and non-marital claims, and to assert your rights during the divorce process. If you have a marital estate that is worth 5 thousand dollars, you should not be spending a lot of money on attorneys fees, or on mediation or an ENE. Its that simple.

If you have questions about this, please feel free to call me directly at (952) 270-7700. My name is Daniel Fiskum, I am a Minnesota Divorce Lawyer, and I would be happy to help you.

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Minnesota Divorce and Child Custody

The issue of child custody and parenting time can be contentious in divorce proceedings.  I always advise people that it is best to resolve disagreements about child custody and parenting time amicably.  This can happen in discussions between the parties, but more likely it will happen in negotiations between the attorneys or in mediation.

If you and your spouse have a significant disagreement about child custody or parenting time, you probably need a lawyer.  This is especially true if your spouse has his or her own attorney.  If you are unsure about whether you should hire an attorney, you should do a simple cost / benefit analysis.  What do you stand to lose?  What do you stand to gain?  What is it worth to you?

There are many nuances to Minnesota child custody laws.  And even though there is a Minnesota family law statute that sets out 13 factors a court should consider, there are dozens of important appellate court decisions interpreting those factors and describing how they apply in very specific fact situations.

It is important to me that my clients understand all of the 13 factors and see how they apply, or do not apply, to their specific situation.  Sometimes I encourage a client to do “homework” so he or she has knowledge that is important to a custody and parenting time decision.  Sometimes I might suggest that a client make some changes to his or her routine.  Sometimes I might suggest that a client make changes to his or her living situation.

If you are thinking about moving out, you need to obtain legal advice first.  While from a strictly legal perspective whether a parent moves out should not impact the application of the 13 factors, nonetheless, when a parent moves out of the home, he or she sends a very clear signal to the court about who the real primary parent is.  A parent should never move out until he or she has had the opportunity to review the move with an experienced attorney.

If you are considering a divorce, you should feel free to call me to schedule a divorce case analysis.  I am not able to give out legal advice over the telephone to people who are not already my clients.  But, I am more than happy to meet with you for 45 minutes at no cost to discuss your case.

I am Daniel Fiskum.  I am a divorce lawyer and family law lawyer based in Minnetonka, Minnesota.  I have practiced family law in the Twin Cities for over twenty-one (21) years.  My office, Fiskum Law Office, P.A., is conveniently located in the Carlson Office Towers at the intersection of Highway 494 and Highway 394, in Minnetonka.  Please feel free to call me at (952) 270-7700 to schedule a divorce case analysis.

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Minnesota Divorce and Daycare Costs

Often, people who divorce have young children who go to daycare during the day or after school.  Daycare costs can be a significant part of a family budget, especially when families are divorced.

In Minnesota, divorce courts require each party to contribute towards daycare expenses and after school care expenses.  As long as these expenses are either work-related or education-related, each party has to share in them.  (If you hire a baby sitter because you are going out for a night on the town, your former spouse does not have to help pay for that expense.)

Calculation of reimbursement for daycare expenses and after school care expenses is part of the child support award, but the reimbursement amount must be specifically set forth in the divorce Judgment and Decree.  Typically, each party is required to contribute towards daycare and after school care expenses based on a ratio of their respective incomes.  If the income disparity between spouses (after including alimony or spousal maintenance) is, for example 60/40, then one spouse has to pay 60 percent of the daycare costs and the other spouse has to pay 40% of the daycare costs.

If you have any questions about this, please feel free to call me, attorney Dan Fiskum, at (952) 270-7700 to set up a free divorce case analysis.  My office is conveniently located in the Carlson Office Towers at the intersection of Highway 494 and Highway 394, in Minnetonka, Minnesota.  We are  near the Ridgedale Shopping Center.

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MN Divorce and the IRS tax exemption

Often I am asked about which parent is entitled to claim the income tax dependency exemption for minor children after divorce.  The answer is “it depends.”

In Minnesota, the divorce court may award the right to claim the income tax dependency exemption to either parent.  Courts frequently allocate the exemptions equally, provide that both parents remain current in their respective support obligations.  If there is only one child, the court will often award the exemption to one parent in even-numbered years, and to the other parent in odd-numbered years.  This language will be included in the divorce decree. Though the court has the right to do this, it probably will not do it unless one party requests it.  In other words, if you forget to ask for it, the court will typically not do anything on its own to include this language.

If the divorce decree is silent about which parent gets to claim the income tax dependency exemption, then the Internal Revenue Code governs.  Essentially, the IRS rules provide that after divorce, the parent who has the child in his or her care more than fifty percent of the time is entitled to claim the exemption.  So, the parent who has the children in his or her care for at least six months and one day is entitled to claim the exemption.

So, what do you do if you have the kids most of the time but your ex-spouse claims the dependency exemptions anyway?  File your tax return, claim the exemptions, and include a certified copy of your divorce decree and a letter explaining why you are entitled to claim the exemption.

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Minnesota Divorce and School Selection

Once in a while I am asked about what happens when two divorced parents (or two parents who are in the divorce process) cannot agree on which school their children should attend.  In Minnesota, the right to select a child’s school is one of the rights that is included in the “bundle” of rights called “legal custody.”  In other words, the parent, or parents, who have legal custody or joint legal custody get to make  the decision.

In Minnesota divorce proceedings, there is a presumption that legal custody will be joint – that is, shared by both parents.  This means that both parents will have a say in which school a child goes to after the divorce, just as they did before the divorce.

While there is a presumption in favor of joint legal custody, this can be overcome if one parent can show that domestic abuse has occurred, or if one parent can show that joint legal custody is not in the best interests of the children.  However, most of the time, legal custody is awarded jointly to both parents.

So, what happens when the parents disagree about schooling?  Often times the court will make the decision.  My opinion is that the court should not pick a school, but should instead make a decision about whether one parent only should have sole legal custody (with no need to obtain the other parent’s consent).  But, as often as not, these days a judge or referee might hear the evidence and make an order about schooling, without necessarily modifying joint legal custody.

In either case, there are specific factors that most courts will look for when deciding this issue. If you and your ex-spouse are having difficulty with this issue, feel free to call me at (952) 270-7700 for a free consultation on yours and your children’s rights and the best way to assert those rights.

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Minnesota’s child support law

People who are getting divorced in Minnesota often ask questions about Minnesota’s child support laws.  The Minnesota child support statute changed significantly in 2007.  If you were divorced before 2007, you are probably operating under the “old” system.  If you were divorced after 2007, you are operating under the new system.  You can read the entire Minnesota child support statute here: http://www.revisor.mn.gov/statutes/?year=2006&id=518A

The main difference between pre-2007 and post-2007 child support laws is the method by which child support is calculated.  Under the old law, the key element was which parent had physical custody.  The parent with physical custody was owed child support by the other parent.  The amount of support was a percentage of the other parent’s net income, or take-home pay: 25% for one child,30% for two children, 35% for three children, 39% for four children, and so on.

The new child support law looks at the income of both parents.  Now, which parent has physical custody has nothing to do with it.  The important concept is “parenting time.”  Under the new law, each parent has a child support obligation.  The amount is determined by looking at each parent’s gross (before tax) income.  The calculation is fairly complex, and I use a computer program to figure it out.  You can use the same computer program I use by going here:  http://childsupportcalculator.dhs.state.mn.us/Calculator.aspx

However, now in Minnesota, the amount of parenting time has a direct impact on the amount of child support.  The more parenting time one has, the less child support he or she has to pay.

Let’s face it folks: when people get divorced, its mostly about the money:  Who gets how much.  Who pays what bills. 

I’ve been praciticng divorce law in Minnesota since 1992.  Back then, people would fight about who got physical custody,  because the “winner” would receive more money.  The legislature thought that by changing the child support law they would create a system that was more fair and that led to fewer disputes.  They were wrong.  Now people fight about parenting time.  And, the “winner” still receives more money.

A lot of attorneys and others who comment on the state of family law in Minnesota would have you believe that divorce can be wonderful, that you can just spend an hour or two in mediation, resolve all of your differences fairly, reach a fair agreement and every thing will be great.  But, if your marriage relationship has come to the point where you are getting divorced, that should be pretty good evidence that you can’t get along, that you can’t have fair discussions and that you can’t reach agreements.  If you could do that, you probably wouldn’t be getting divorced.

So maybe its time to contact an experienced divorce lawyer?

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Minnesota Paternity, Parental Rights and Parenting Time

Here’s the deal: Maternity is a matter of fact.  Paternity is a matter of opinion.  Until the genetic DNA test results have been returned.  And, until a district court judge has signed a court order.

If you are a father and you are not married to your child’s mother, you have no parental rights unless and until you have a court order that says you do.  Signing a Recognition of Parentage at birth does not give you parental rights.  Getting your name on the child’s birth certificate does not give you parental rights.  Having and paying a child support obligation does not give you parental rights.

The county can (and most likely will) initiate a proceeding to obtain child support.  This proceeding will not give you parental rights.  It will create an obligation–you will need to pay support–but this proceeding will not result in you getting either joint legal or physical custody, and it will not result in you getting parenting time.

And, if you do not have any parenting time at the time the county brings its proceeding, you will end up paying more support.  You will incur the “no parenting time” surcharge on your child support obligation that, over a period of 18 years, could result in your paying tens of thousands of dollars more than you should otherwise have to pay.

If you have a child and are not married to the child’s mother, you should hire an attorney and get your parental rights established.  A lot of guys are really stupid about this stuff.  All they can think of is saving a few dollars on attorney’s fees so they can spend it on a new set of rims for their aging sport compact car.  What they do not realize is that their economic future is being designed for them by the government, and the government isn’t doing them any favors.

Best to lawyer up now.

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Minnesota Divorce and College Tuition

Sometimes people ask whether, as part of their divorce decree, the court can impose a requirement that their soon-to-be ex-spouse pay for college tuition for the children.  The answer is “No.”

In Minnesota, a divorce court has jurisdiction over minor children only until they become adults.  In most cases, a child becomes an adult when he or she reaches the age of 18 years and has also graduated from high school.  (An 18 year old or 19 year old who is still enrolled in high school is considered a child, at least for child support purposes).  There are other ways in which a child can emancipate before turning 18–getting married or joining the military are two ways that come to mind.

But, once a child has emanciapted, the divorce decree can no longer require a parent to support him or her.  And, a divorce judge in Minnesota cannot order a parent to pay for college tuition for his or her adult child. 

However, if the parties agree to it, a provision requiring one or both parents to pay for college tuition can be included in the divorce decree.  This has to be voluntary on the part of the person agreeing to make the payment.

Generally, I do not think this is a good idea.  The way I see it, if someone wants to pay for their child’s college tuition, more power to them.  But to agree to become obligated to do so doesn’t make a lot of sense to me.  Its hard to know the future.  Its hard to know whether you will be employed when your child starts college.  Its hard to know whether your child will study hard and get good grades, or use the four years of college to major in partying.  There are so many variables.  Its best to leave it out of the divorce decree and then pay for it (voluntarily) when the time comes.

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MN Orders for Protection and Divorce

In Minnesota, there is a type of court order that is called a “domestic abuse order for protection.”  This is an order that is intended to protect an abused party from an abuser.  Typically, a domestic abuse order for protection provides that the abuser may not have contact with the abused party, and that if he or she does, he or she is subject to arrest and prosecution.  To obtain an order for protection in Minnesota, the abused party files a petition in district court which states the nature of the abuse and sets forth the relief requested.

When people are genuinely the victims of domestic abuse, an Order for Protection is a necessary an appropriate remedy.  No one should be abused or threatened.  The abusing party does not get a free pass, just because he or she happens to be married to the person they are abusing.  If you are the victim of domestic abuse, you should seek help from an attorney and you should consider all options, including filing a petition for an Order for Protection.

Unfortunately, many people falsely claim that domestic abuse occurred in order to gain an advantage in a divorce proceeding.  This is unfortunate, but it happens to be reality.  Some people lie.  They often justify this to themselves by thinking that the end justifies the means.

If you are getting divorced, your spouse may lie about domestic abuse in order to get a quick order throwing you out of the house.  If this happens, you should consult with an attorney.  At a domestic abuse hearing you will be presented with three options.  None of them are very good.  But, generally speaking, it is best to try to get the court to defer all decisions relating to custody and parenting time to the court that is presiding over the divorce proceeding.  Often the best way to accomplish this is to avoid a trial on the issue of whether the domestic abuse occurred.  This can be done by agreeding to entry of an Order for Protection without the court making a finding that domestic abuse occurred.  Then, take up the issues of child custody, parenting time, child support, etc., in the divorce court.  Generally you will get a fairer hearing.

I want to emphasize that I understand that there are real victims of domestic abuse.  These people are entitled to an Order for Protection.  But, there are also people who lie about domestic abuse in order to gain an advantage over their spouse.  If a case is presented correctly, I have confidence that our court system can tell the difference.

The Future of Divorce in MN

I have practiced divorce law in Minnesota since 1992.  During that time, there have been significant changes both to the law, and also changes to the court system itself.  In my opinion, the most significant change to divorce law in the past 20 years is the change to the way child support is calculated.  Now, the denomination of “physical custody” has little meaning or impact.  A parent who wants to avoid paying child support simply argues for greater parenting time.  They tell the court that the custody label is not important, but they should be able to spend approximately equal parenting time with their children.  This in turn means they pay significantly less child support.  For better or worse, many courts seem to accept this argument.  If you are an attorney, this makes it even more imperative that, regardless of which party you represent, you carefully develop and present a compelling and cogent argument for your client’s position, whether in Early Neutral Evaluation, in mediation, at a Temporary Relief hearing, or at trial.

However, I think the most significant change in Minnesota divorce practice has not yet fully played itself out.  This change has to do with money, or more correctly, with the lack thereof.

The court system is in a financial crisis.  This crisis has been articulately described by Chief Justice Eric J. Magnuson in highly publicized interviews he has given to the media.  I have read some of his interviews, and I have to say that I think he is right.  (I also have to disclose that, technically, I work for the Minnesota Supreme Court.  My license to practice law is granted by the Minnesota Supreme Court, and in some sense Chief Justice Eric J. Magnuson is my “boss.”  Regardless, I feel that he is right and I think that anyone who has an interest in the Minnesota court system should make known to their legislators how important it is that the court system be adequately funded.)   

In a practical sense, the lack of funding effects every person who is getting divorced in Minnesota.  The court filing fee is now $400.  It could increase.  It costs $100 to file a motion in divorce court, and it even costs $25 to send a fax to the court.  These are the costs that are easy for people to recognize.

However, there are other costs.  The funding for child custody and parenting time evaluations in Hennepin County has been reduced significantly.  Now, judicial officers are talking about parties using private evaluators.  Private evaluators typically charge thousands of dollars for a custody or parenting time evaluation.

Courts are implementing steps to cut down trial time by limiting the time that each side has to present his or her case to the court.  Sometimes the limitation can seem arbitrary.

Some parties are using “Special Masters” to conduct “private” divorce trials.  This is similar to binding arbitration.  I am personally opposed to the use of Special Masters because my experience is that there is a network of attorneys and mediators who know each other and have biases in favor of each other.  A judge or family court referee is not allowed to practice law.  This is appropriate, because it takes the judicial officer out of the “network of friends” or attorneys that know each other and meet up at Bar Association meetings.  Sometimes I get decisions from a judge that I or my client disagree with.  I often tell my client that the judge really did exercise his or her best judgment, and that he or she does not have a stake in the outcome, that he or she does not have any connection to the attorneys or expert witnesses because he or she is a judge.  The appearance of impartiality is important.

I cannot say the same thing about Special Masters.  Special Masters act in the role of judge one day, and attorney the next.  They have biases, and they have commercial and financial relationships to other attorneys and expert witnesses.  These relationships can get in the way of a fair judgment.  The problem is, because of the process of self-justification that everyone engages in, a Special Master cannot always see his or her bias.  (For more on self-justification and how this negatively impacts a fair and impartial judgment, refer to the books “Mistakes Were Made (But Not By Me).”

Of course, the persons who act as Special Masters who read this entry are already in denial–saying that I do not “get it” and that while others might be biased, they certainly cannot be biased.  To those Special Masters, I say “read the book “Mistakes Were Made (But Not By Me).  Then re-read it until you get it.”  Denial is extraordinary powerful.

I predict that, in the future, more and more costs of getting divorced in Minnesota are going to be shifted to the parties.  I also think that the results of the proceeding will not be as satisfactory.  People will walk away from legitimate claims and positions because they cannot afford the cost.  The financially advantaged party will prevail, while the financial disadvantaged party will suffer.

I think this is an unfortunate, and unavoidable consequence of the lack of sufficient funding.

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MN Divorce and Guardian ad litems

In contested Minnesota divorce cases, a guardian ad litem is a person who is appointed by the court to represent the interests of children in a divorce proceeding.  Typically, the guardian ad litem does not perform a custody evaluation or parenting time evaluation.  However, he or she will participate in the process, appear at court proceedings, and indicate his or her opinion about the best interests of the children to the court.

Usually guardian ad litems are not attorneys and they are not psychologists or licensed social workers.  Many people who go through a divorce where custody is contested believe that the guardian ad litem has too much power.  They believe that a guardian ad litem can form an erroneous or flawed opinion based largely upon first impressions. They believe that once a guardian ad litem forms an opinion, they are unlikely to consider credible evidence that contradicts their opinion.

This belief is born out by research.  A very good book on this topic is “Mistakes Were Made (But Not By Me),” written by Carol Tavris and Elliot Aronson.  One of the conclusions of this book, supported by research, is that once people form an opinion, they tend to overlook contrary evidence.  Once an opinion is formed, the person engages in a process of self-justification, mostly looking for evidence to prove they are right.  I highly recommend “Mistakes Were Made (But Not By Me)” to people who are going through a divorce.  It can give great insight into the thought processes of the individuals involved.

In light of this issue, there are several steps that people who will contest custody should consider taking.  The first is to get a child into counseling with a qualified, neutral therapist.  By “qualified,” I mean a licensed psychologist or psychaitrist.  I do not mean a minister, priest, social worker, or family friend.  If the child has a good relationship with his or her psychologist, the psychologist can have input that can either influence or inform the opinion of the guardian ad litem.

Secondly, people should fully understand the temporary relief process, and they should have an attorney who knows how to present a credible and powerful story to the court.  You only get one chance to make a first impression, and my experience is that the terms of a Temporary Order that is issued after a temporary relief hearing will have a significant impact on how the case evolves.

One final note: if you are consdering these steps, you need to take them sooner rather than later.  If the status quo is favorable to you, delay helps.  If the status quo is unfavorable to you, delay hurts.

If you have questions about this, feel free to call me at (952) 270-7700 for a free, initial consultation.

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MN Divorce and Income Tax Exemptions

Often people who divorce in Minnesota forget to address the issue of the income tax depdency exemptions for their minor children.  This issue should not be overlooked because, cumulatively, it could save a spouse tens of thousands of dollars on his or her income tax return.

From the perspective of the Internal Revenue Service, after parents are divorced, the parent who has the children in his or her care more than 6 months out of the year has the right to claim the income tax dependency exemption for the children.  However, regardless of what the IRS says, a Minnesota divorce court can award the exemptions to the parent who has the children in his or her care less than 6 months out of the year.  They do this because both parents are liable for support and both parents should be able to claim the exemptions.

If there is one child, usually courts order that the parents alternate claiming the exemption from year to year.  If there are two children, usually each parent is awarded the right to claim one exemption.  If there is an odd number of children, usually the exemption for the odd-numbered child is alternated between the parents year to year.

If a person who is getting divorced has young children, he or she could be claiming the income tax dependency exemption for 15 or more years.  If you do the math, the cumulative impact of this is worth a very significant amount of money.

Do not overlook the income tax dependency exemptions when getting divorced.

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MN Divorce and Child Alienation

As a divorce attorney, one of the things that I find most troubling is a parent who alienates the children from the other parent as a form of retaliation.  Sometimes this alienation is deliberate.  A parent wants to get even with the other parent so they tell the children bad things about that parent.  Sometimes the parent alienates a child from the other parent without knowing he or she is doing it.  I’ve seen quite a few “victim” parents who have no idea that their behavior will have a permanent negative impact on their children.

In my experience, child alientation in the divorce process is far more common than most people think.  Recently, the results of a study of the impact of divorce on children in Boston, Massachussets, was discussed on National Public Radio.  The conclusion was that divorce negatively impacts children.  In my view, it is often not the divorce per se that negatively impacts the children, but it is the behavior of a parent who either subtly, or not so subtly, implants negative ideas and beliefs about the other parent into the minds of their children.

This can occur many ways:

A parent can show a child the divorce pleadings.  A parent can turn to a child for emotional support, telling them how sad, scared and depressed they are.  A parent can tell the child that the other parent is not paying enough money to support that parent or the child.  A parent can quibble about whether the other parent shows up for parenting time a few minutes early or a few minutes late.  The list goes on and on.

Of course, the alienating parent has all sorts of ways to justify this behavior in his or her mind.  She will say that the children need to know “the truth,” as if there were only one “truth” to the divorce (and it just so happens that the alienating parent knows what it is).  The parent will say they just “happened” to leave the pleadings on the dining room table where the child just “happened” to pick it up and read it.

Parents who rely on their children for emotional support are turning their children into adults.  This is wrong.  Children have the right to be children.  Children should not have to be the emotional support or emotional sounding board for their parents.  Children’s minds are not adequately developed to do this.  A child should not have to know how depressed his or her parent is.  Children should not have to listen to their parents argue about parenting time or the sufficiency of alimony or child support payments. 

To those parents who are emotionally distraught and want to act out emotionally in front of the children, I say “suck it up.”  I understand that divorce can be a miserable process to go through, but you owe it to your children to keep them out of the middle. 

There are two things an attorney needs to do when dealing with an opposing party who is alienating the children.   The first step to go to court early and seek the appropriate legal relief.  This is very important.  The longer the alienating behavior goes on before it is addressed by the court, the greater the negative impact on the children.  The second thing to do is to immediately get the child or children into therapy with a psychologist who has experience in both child alienation syndrome and forensic psychology.  There are several that I recommend when discussing this issue with clients.

If you have questions about this or any other topic on the Fiskum Law blog, feel free to contact me at (952) 270-7700.

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