Janet L. Goehle, Attorney at Law
651-243-6005 800-598-6990 Call For A Consultation

Proper drafting of pleadings is essential in child custody cases

Family law rulings on divorce and child custody often depend not only on laws but on interpretations and decisions of the Minnesota Supreme Court. These judicial rulings become precedent that governs how marriages are dissolved, support is awarded or child custody is determined.

Modification of custody decisions in Minnesota must comply with the Nice-Petersen rule, named after a 1981 state Supreme Court decision. In that case the Supreme Court ruled that the trial judge acted properly in denying an ex-husband's request to modify a child custody award, even though the trial judge denied the request without affording the ex-husband an evidentiary hearing. This rule illustrates the importance of properly drafting modification requests in addition to presenting evidence.

The ex-husband sought an agreement modification to provide for joint custody. He attached supporting affidavits to his request in accordance with Minnesota law. The guardian ad litem brought a motion for an order that custody remain unchanged.

The ex-husband objected to the introduction of the guardian ad litem's report as well as reports submitted by his ex-wife from a psychiatrist and a Department of Court Services employee. He requested an evidentiary hearing to allow him to cross-examine these witnesses. However, the trial court did not schedule an evidentiary hearing and denied modification of custody because the father did not allege legally sufficient circumstances in his affidavits supporting modification.

The Supreme Court ruled that a party seeking custody modification must preliminarily establish that there was a significant change of circumstances since the time the custody order or any amended order was issued. The change of circumstances must have endangered the child's emotional health or development. Because the ex-husband's affidavits did not set forth changes in circumstances justifying modification, the modification request was properly denied without an evidentiary hearing.

Careful drafting of pleadings can help assure that parental rights are protected in custody proceedings. A family law attorney who understands the nuances of court procedure can provide critical assistance to a parent.

Source: Google Scholar, "Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471 (1981)," accessed Jan. 4, 2016

No Comments

Leave a comment
Comment Information
Email Us For A Response

Send An Email

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

FindLaw Network