On June 11, 2010, the Dakota County District Courts began the implementation of a new pilot program for family law cases known as the Early Neutral Evaluation (ENE) program. It was designed for all dissolution cases with children in an attempt to direct divorcing parents to neutral evaluators early in the court process. The parties can choose a Financial ENE to help resolve financial disputes, or a Social ENE to help resolve custody and parenting time disputes, or both.
When a divorce petition is filed with the court, and there are children involved, the parties receive a notice to attend an Initial Case Management Conference (ICMC) where the ENE process is discussed. The parties meet with the judge to learn about various ways their divorce can proceed, either through traditional litigation or through the ENE process. If the ENE process is chosen, the parties select one or two neutrals who will attempt to help them resolve their dissolution issues. The neutrals are chosen from a pre-approved list of experienced family law practitioners. The neutrals evaluate the case and encourage the parties to find common ground for resolution of their issues outside the courtroom.
ICMC proceedings are informal and often not on the record, giving judges a chance to speak openly with the parties to persuade them to complete their divorce through a more amicable process. The ENE mediation process is less adversarial, faster, and less expensive than traditional litigation. It also allows the parties to focus on the best interests of the children and attempts to reserve a relationship between the parents. It further allows the parties to stay in control of the decisions, which leads to more satisfaction in their final resolution and fewer post-decree court appearances.
Since its inception in Dakota County, 89 of 144 total cases have been removed from the courts family calendar. Of those 89 cases, 57 have pursued the ENE process, 25 cases have completely settled at the ICMC, and 7 cases have completely settled prior to the ICMC. The 89 cases represent a 62% success rate of removing cases from the court system. Parties and their attorneys have reported being very satisfied with the ENE process and extremely supportive of it. The pilot is expanding throughout the First Judicial District and the courts expect it to be part of a shift in how family law cases are handled. Hopefully, it will soon be available to those cases which do not include minor children.
On June 20, 2011, following an appeal by Anthony Darst, the Minnesota Court of Appeals reversed a decision from the district court which had granted substantial visitation rights to Roxanne Givens, the maternal grandmother of Darst’s son. The district court granted Givens visitation every Tuesday and Thursday afternoon and every other weekend from Friday evening through Sunday evening. According to the Court of Appeals, the district court's order treated Givens as a noncustodial parent and imposed a schedule that interfered with the father's parent-child relationship.
When the child was only four months old, his mother was murdered by a man she had previously dated. Less than two weeks after the murder, Givens filed a petition seeking to become the child’s “sole legal and sole physical” custodian. At the time of filing, Darst was presumed to be the father; however, Givens did not notify him about her petition. Shortly after filing, the district court designated Givens as the child’s temporary legal and physical custodian. Upon hearing of the order, Darst served Givens with his petition for judgment of paternity in order to secure his paternal right to sole legal and physical custody of the minor child.
After the temporary custody order was issued in February 2009, the same month that Darst filed his custody petition, the child remained with Givens until the district court’s custody decision in November 2009. Three months later, Givens petitioned for grandparent visitation under Minnesota Statute 257C.08. Darst agreed that Givens should have time with her grandson, but he was not in agreement with how much time her petition requested. The district court’s order granted Givens visitation every Tuesday and Thursday afternoon and every other weekend from Friday evening through Sunday evening. Darst appealed.
In its decision, the Court of Appeals recognized that parents have a fundamental right to make parenting decisions, including who can spend time with their children, which is a constitutionally protected right. However, a grandparent of a child whose parent has passed away may petition the court for visitation. The court has discretion to grant visitation even against the surviving parent’s wishes only if the visitation does not interfere with the parent’s relationship with the child. The grandparent must prove by clear and convincing evidence that visitation would not interfere with the parent-child relationship. Here, the Court of Appeals found that the district court abused its discretion when it issued an order that interfered with Darst’s relationship with his son. The Court of Appeals also found that the district court failed to apply the required presumptions and burdens when making its determination. Therefore, the Court of Appeals reversed the district court’s decision and remanded with instructions to issue an amended order adopting Darst's proposed schedule with variations to accommodate visitation on or near significant holidays, within the district court's discretion.
In 2008, the Minnesota Legislature put together a Study Group to consider the impact that a presumption of joint physical custody would have in Minnesota. The Study Group was provided with the proposed legislation that, if passed, would create a rebuttable presumption that joint physical custody is in the best interests of the child. Currently, Minnesota courts review specific situations of individual children to determine their best interests in regards to physical custody. Under a rebuttable presumption, Minnesota courts would assume that structuring routine daily care, control, and residence between both parents is in the best interests of all children. The burden of seeking a best interests determination would shift to an objecting parent who would have to prove that joint physical custody is not in the child’s best interest.
The Study Group identified potential problems and benefits of a joint physical custody presumption. Some of the potential benefits include: Encouraging children’s ongoing relationships with both parents; limitation of court discretion; enhanced predictability; potential decrease in litigation; might enhance children’s relationships with extended family members; might enhance parents’ rights; and possibility of increased efficiency and decreased costs. Some of the Study Groups concerns regarding such a presumption include: Limitation of courts’ ability to consider the needs of individual children; detriment to children continuously exposed to high levels of parental conflict; possibility of heightening conflict between parents who are unable to effectively co-parent; creation of financial and procedural challenges for low income and unrepresented parents who would carry the burden of proof if they object to joint physical custody; and impracticality for some families such as those with parents living far apart, whose children are very young, and/or parents who are not married and have never had an ongoing relationship with each other.
A lack of Minnesota data made it difficult for the Study Group to assess issues and generate helpful responses and, according to the Study Group, a joint physical custody presumption may not be an appropriate solution for current custody problems.
Minnesota Joint Physical Child Custody Presumption Study Group Report, January 14, 2009, http://www.mncourts.gov/Documents/0/Public/NewsPostings/MN_Joint_Physical_Child_Custody_Presumption_Study_Group_Report_2009.pdf
