Brief Focused Assessments in Hennepin County Family Court

In contested cases involving child custody or parenting time, it is common for the family court to seek the input and recommendations of a neutral evaluator to help resolve the contested issue. Hennepin County Family Court Services has developed a new service, Brief Focused Assessment (BFA), as an alternative to comprehensive custody and parenting time evaluations. The purpose of this tip is to provide a brief overview of the program and what to expect if your case is referred to BFA.

BFAs are designed to provide evaluative services on narrowly defined issues in family court cases involving children. A BFA is generally completed in less time than a comprehensive evaluation. BFAs are typically completed in 60 – 90 days, depending on the complexity of the situation, compared to the 120 days or more for a comprehensive evaluation. BFAs are also less expensive than a comprehensive evaluation (follow the link at the end of the article for a fee schedule).

BFAs provide a versatile tool for use in many family law scenarios. Examples of situations appropriate for referral to Brief Focused Assessment include:

• Assessing a child’s wish to live with a non-custodial parent
• How to reestablish interrupted parent/child relationships
• Determining developmentally appropriate parenting time for a child with special needs • Parenting time after a relocation

While BFAs are useful in a wide variety of cases, the question presented in the court’s order for a BFA must direct the evaluator to address a specific, narrow and well defined question. For example, in a case involving allegations of a parent having substance issues, a question for assessment could be: Does the parent suffer from substance abuse and if so, how does it impact the parent’s ability to provide a safe and consistent living environment during parenting time? For more examples of questions appropriate for a BFA, please refer to the attached information about the program provided by Family Court Services.

A BFA is not appropriate for every situation. When there are a multitude of issues or questions raised or if addressing one question causes many more to be raised, a comprehensive evaluation may be required. In addition, the BFA does not offer custody recommendations as would a comprehensive evaluation.

For more information about the BFA program go to http://www.hennepin.us/residents/public-safety/family-court-services

Examples of Appropriate BFA Questions

  • Assessing children’s wishes to live with non-custodial parent: In a case where one parent asserts that a child wishes to live with the non-custodial parent. A BFA would assess what is the context and basis of the child’s wish to change residence; is the child able to articulate his/her reasoning in a developmentally appropriate way; what is the parent’s report of the history of this request as well as the parenting and attachment history, are there concerns about parental influences on the child’s thinking/wishes; does the child have special needs which warrant consideration and what would be the impact on the child if such a change was granted.
  • How to reestablish interrupted parent/child relationship: In a case where a parent has been absent form a child’s life for a lengthy period of time: under what conditions might it benefit the child to establish a relationship with the parent and what might the risks be to the child and current caretakers?
  • Chemical health/Mental health as it relates to providing a safe and consistent environment: In a case where there are allegations of instability in a parent: In what ways might a parent’s alleged substance abuse or mental health condition impair their ability to provide a safe and nurturing environment for the child during their parenting time? Does the parent suffer from a mental illness or substance abuse and if yes, then how might this impact their ability to provide a safe and consistent environment during their parenting time.
  • Determining developmentally appropriate parenting time for a child with special needs: In a case where a child is very young, or has special needs: Given a parental agreement or court ruling on legal and physical custody, what sort of parenting time schedule would be developmentally appropriate?
  • Parenting time following abuse/neglect allegations where there has been a lapse in contact: In a case with a young child and unsubstantiated allegations of abuse; How can access be allowed in a safe, developmentally appropriate and careful manner, especially if there has been a lapse in contact?
  • Parenting time schedule after relocation: In the context of a larger matter (custody or relocation) a well-defined issue may be identified for a BFA, for example; what would be a developmentally appropriate access plan if post-divorce relocation is allowed.
  • Assessing family dynamics where child is aligned with one parent, with suggestions to improve the relationship with the excluded parent: In the case of a child who appears aligned with one parent to the exclusion of the other; and assessment of the dynamics of the parent-child relationship with suggestions to improve the relationship, if appropriate to do so.

Provided by Hennepin County Family Court Services (4/2014)

Submitted by: Tom Walsh – VLN Resource Attorney
 

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Contempt Proceedings in Family Court

Introduction

Motions for civil contempt of court (the failure to obey a court order issued for the benefit of another party) are frequently seen in family court. Civil contempt proceedings have special rules and procedures that distinguish these proceedings from other family court motions. The purpose of this tip is to provide an overview of civil contempt in family court and provide a starting point for volunteers considering or encountering a contempt motion in their family law case.

Purpose of Contempt

The purpose of civil contempt is to compel compliance with a court order, not to punish parties for past behavior.1 Once a party is found in contempt, the court may impose a conditional penalty, including jail time, a fine, payment of fees, and other consequences. Examples of situations where contempt proceedings are appropriate include those in which a party has violated a parenting time schedule, failed to pay court-ordered child support or spousal maintenance, or failed to transfer a title of property.

Preparing the paperwork

Contempt proceedings are initiated by service of an order to show cause,2 notice of motion and motion and accompanying affidavits upon the alleged contemptor.3 The order to show cause must direct the alleged contempt or to appear and show cause why he or she should not be held in contempt and why the moving party should not be granted the relief requested in the motion.4 The order to show cause and the notice of motion and motion must contain the following: 1) a reference to the specific order or judgment of the court and date of entry or filing alleged to have been violated; 2) a quotation of the specific applicable provisions ordered; and 3) the alleged failures to comply.5 Once the proper paperwork is prepared, the attorney should submit the notice of motion and motion, affidavits and the proposed order to show cause to the assigned judicial officer.6

Service

Once the order to show case is signed, the next step is to serve the contemptor with the paperwork referenced above. An order to show cause must be served directly on the alleged contemptor, not on the alleged contemptor’s attorney.7 The person serving the documents must show the original order to the alleged contemptor and then hand the alleged contemptor copies of the order to show cause, notice of motion and motion and supporting affidavits. After service is complete the person serving the documents must complete an affidavit of service and return the original order back to the serving party for filing. (It is best practice to contemporaneously notify opposing counsel that your client is initiating contempt proceedings.)

The Contempt Hearing

The alleged contemptor must have to opportunity to appear and testify before the court.8 When making a finding for contempt, the court looks at factors set out in Hopp v. Hopp.9 Where appropriate, the court will make a finding of contempt and enter a sentence. The court will establish purge conditions that allow the contemptor to avoid the imposition of the sentence. When establishing the purge conditions, the court must determine that the contemptor has the ability to meet those conditions.10 At the second hearing the contemptor has the opportunity to demonstrate compliance with the purge conditions.11 Failing to comply with the purge conditions may result in confinement.

Practice Tips

    • Take efforts to resolve the issue prior to a contempt motion. Some attorneys will attach proof of efforts to resolve the issue, such as a letter to the contemptor, to the client’s affidavit.
    • Consider alternative forms of relief. For example, a motion for compensatory parenting time may be more effective than a motion for contempt.
    • Volunteers representing clients who have received an IFP order are encouraged to use the local sheriff to serve the order to show cause.
    • Set client expectations – remind them that the purpose of contempt is not to punish the other party.
    • Come to the contempt hearing with possible purge conditions and a plan for how you want the conflict resolved.
    • Think about the consequences of incarceration. A jailed party may not be able to maintain his or her employment.
    • Contempt, particularly where confinement is concerned, is a complex area of law. All volunteers new to family law and contempt proceedings are strongly encouraged to read the relevant case law and speak with an experienced practitioner if they have questions about how these proceedings may or may not apply to specific cases.

1 Mahady v. Mahady, 488 N.W. 2d 888, 809 (Minn. Crt. App. 1989).
2 Minn. R. Gen. P. 309.01 allows for contempt proceedings to proceed without an order to show cause. As detailed in the comments to the 2012 amendments, “use of an order to show cause is the preferred method to commence a contempt proceeding if there is a meaningful risk that the alleged contemptor will not appear in response to the notice of motion.” For the purposes of this tip the author is assuming the moving party is using an order to show cause.
3 Minn. R. Gen. P. 309.01(a).
4 Minn. R. Gen. P. 309.01(b).
5 Id.
6 Volunteers are encouraged to contact the judicial officer’s clerk to determine the best method for submitting the materials.
7 Minn. R. Gen. P. 309.01 (b).
8 Minn. R. Gen. P. 309.02
9 Hopp v. Hopp 156 N.W. 2d 212, 216-17 (Minn. 1968). For space purposes, the factors are not included in this tip; however, an understanding of the Hopp factors is required in every case. (1) the court has jurisdiction over the subject matter and the person; 2) a clear definition of the acts to be performed; notice of the acts to be performed and a reasonable time in which to comply; an application by the party seeking enforcement giving specific grounds for the complaint; 5) a hearing, after due notice, to give the nonperforming party an opportunity to show compliance or the reasons for failure; 6) a formal determination by the court of failure to comply and, if so, whether conditional confinement will aid compliance; 7) an opportunity to comply despite a good faith effort; and 8) the contemptor’s ability to gain release through compliance or a good faith effort to comply. Id.
10 Mahady v. Mahady, 488 N.W. 2d 888, 890 (Minn. Crt. App. 1989). This is sometimes referred to as giving the contemptor the “keys to the jail.”
11 Id.

Submitted by: Tom Walsh, VLN Resource Attorney

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Emergency Relief in Family Court

A common issue faced by new and experienced family law practitioners is the need for emergency relief. When is an emergency really an emergency? What are the procedures for obtaining emergency relief? What does a judge or referee consider when deciding whether to grant emergency relief? This tip focuses on emergency relief related to children.

WHAT IS EMERGENCY RELIEF?

The two main forms of emergency relief in family court cases are ex parte orders and accelerated hearings. An ex-parte order is an order signed by the court solely upon the application of one party without argument from the adverse party. An accelerated hearing is a hearing where the court has waived the 14 day notice requirement required by MN Rules of Practice 303.03. Depending on the court’s determination of the level of emergency the accelerated hearing may be granted in addition to or instead of the relief requested in the ex parte order. Where the ex parte relief granted affects custody and parenting time, Rule 304.04 requires an accelerated hearing within 14 days from the date the emergency relief is granted.

PROCEDURE

Rule 303.04 of the General Rules of Practice addresses the procedure for requesting emergency relief. The party seeking relief must state in specificity in a motion and affidavit:

a)     Why emergency relief is requested;

b)     The relief requested;

c)     Disclosure of any prior attempt to obtain the same or similar relief and the result;

d)     If there was a prior attempt to obtain emergency relief, the name of the judicial officer to whom the request was made;

e)     If the prior request was denied for the same or similar relief, explain what new facts are presented to support the current motion.

A party has an obligation to serve the adverse party with the motion and affidavit, including notice of the time and place the motion will be heard unless:

a)     The party seeking emergency relief provides a written statement that the party has made a good faith effort to contact the other party or counsel and has been unsuccessful or

b)     The supporting documents show good cause why notice to the other party should not be required and the court waives the notice requirement.

If a case has not been filed an emergency filing order is necessary to expedite the opening of a case file. Note that in order to open a file you must include the underlying pleadings and paper-work in addition to the materials requesting emergency relief. For example, if you are seeking an ex parte order granting a grandparent temporary custody you must also file a petition for 3rd Party Custody at the same time.

In Hennepin County, the party seeking relief shall contact the chambers of the judicial officer assigned to the case. If the case has not yet been filed, the motion, affidavit and accompanying materials are provided to the signing judge.

PRACTICE TIPS

While the procedure for seeking emergency is relatively straight forward, determining whether to seek emergency relief in the first place is not. The following practice tips can help guide you through the process.

1) Nature of the Emergency – Emergency relief is a high standard to meet.  There is not a checklist of circumstances or occurrences that are pre-determined emergencies. The facts and circumstances of each case determine whether emergency relief is appropriate. Generally an emergency situation resulting in action by the court requires the potential for immediate harm to a child should the court fail to act. This could include where a child is being exposed to a sexual predator, removing the child from the state without permission, withholding a child and not providing necessary medical care or medication.

2) Accelerated Hearings vs. Ex Parte Orders – In practice the standard to obtain an ex parte order is often whether the children are in imminent danger of harm. Where this standard is not met the court will often schedule an accelerated hearing to address the emergency issues with both parties present. While not immediate relief the accelerated hearing allows the issue to be addressed in an expedited manner. Keep in mind that a party can request an accelerated hearing without seeking an ex parte order.

3) Notice – Notice is a prime consideration for the court in these cases. You will be asked if you gave notice to the other party that you were seeking emergency relief. Where appropriate consider submitting an affidavit of counsel detailing your efforts to contact the opposing party. If you are asking for relief without notifying the other party specifically state the reason why in your client’s affidavit. If you obtain an order for accelerated hearing or ex parte relief, be prepared to immediately serve the opposing party.

4) Be prepared to provide the court additional information – This could include taking testimony from your client or contacting the adverse party from the courtroom.

5) Do your homework – Your client is asking the court to grant extraordinary relief. Your credibility is at stake if the court determines the reality of the situation does not match the facts presented by your client. You may also lose credibility when bringing a motion that does not meet the high standard that is required for emergency relief.

 

Submitted by: Tom Walsh, VLN Resource Attorney1

1This tip was inspired by an article by Larry McGee in the Family Law Forum, Volume 21, No. 1 (Winter 2012-13). The article can be found online at: http://www.mnbar.org/sections/family-law/2012-13%20Newsletter/FLNewsWinter12-13.html.

Safe at Home – Keeping Addresses Confidential

Safe at Home is a new project of the Secretary of State’s Office that provides survivors of domestic violence, sexual assault, and/or stalking a way to keep their address confidential. Safe at Home can be a valuable tool in helping keep your client safe from violence.

What Is It?

Safe At Home provides participants a P.O. box number to use as a substitute address.  Mail sent to the Safe At Home address is collected and forwarded to participants on a regular basis.

In the event that personal service of any document is required by law, that document may be served by delivering the document to any public counter of the Office of the Secretary of State. As the secretary of state is the agent for service of process, an affidavit of service on the secretary of state constitutes proof of service on the program participant and commences the time in which responsive pleadings must be filed.

Safe at Home is for survivors of domestic violence, sexual assault, stalking and others who fear for their safety.  A participant does not have to have received an order for protection or have been the victim of a prosecuted crime.

Statutory authority for the Safe at Home project is found in Minn. Stat § 5B.

How to Apply:

People can apply through the program only through a trained advocate.  For more information or to find where to apply for the project call (651) 201-1399 or visit www.sos.state.mn.us.

Tip Submitted By:
Thomas Walsh
Family Law Resource Attorney
Volunteer Lawyers Network