Players in Family Law
Understanding the different actors in family law can be challenging for those who are unfamiliar with legal terminology or who are new to the family law system in Minnesota. The following terms will hopefully serve to clarify the common players in various areas of family law.
In a divorce case, the term “petitioner” refers to the spouse who is filing for divorce.
The respondent is the spouse against whom the divorce action is brought.
The state of Minnesota is divided into ten judicial districts. Depending on the size of the district, there may be multiple district courts within each district, serving one or more counties. Family Court is the division of the district court which handles cases of divorce, domestic abuse, child custody, child support, and paternity.
Family law judge
In Minnesota, divorce cases are decided by a family law judge, not by a jury. The judge in the family court will hear testimonies of witnesses, listen to the arguments of lawyers and pro se parties, review evidence that is submitted, and make a ruling on any disputed issues.
In Hennepin and Ramsey counties, there are family court referees. A referee is similar to a judge in that the referee is an officer of the court who has the authority to rule on divorce cases. The orders of a referee, however, are generally considered recommendations that need the approval of a district court judge. In reality, the vast majority of orders that are recommended by a referee are approved by the judge.
Family law facilitators
In some places, such as Hennepin County, the district court has initiated a program to assist individuals who intend to represent themselves in matters in family court. Facilitators can help parties to understand instructions and properly complete necessary court forms. They cannot, however, provide legal advice.
Caregiver or Caretaker
A caregiver refers to an individual, such as a parent, foster parent, or relative, who attends to the needs of a child, but may not have legal custody of the child.
Guardian ad Litem
In family law matters, a guardian ad litem may be appointed by the court to represent the best interests of a minor child in cases where there are allegations of physical or sexual abuse. The guardian ad litem gathers information from all relevant sources including educational records, therapists, doctors and extended family members. They also interview the parents, and the children if they are of a sufficient age, Once they have gathered all relevant information they give their recommendations to the court as to appropriate custody and parenting time.
De facto Custodian
A de facto custodian is a legal term referring to a non-parent who has been the primary caretaker of a child. There are certain requirements for an individual to be considered a de facto custodian. The child, for example, must have resided with the individual for a period of 24 months without the child’s parent present and with a lack of demonstrated consistent participation by the parent for a period of six months to a year, depending on the child’s age.
Interested Third Party Custodian
An interested third party is an individual who is not a de facto custodian but who can prove at least one of the following (1) the parents have abandoned, neglected, or otherwise exhibited disregard for the child’s well-being to the extent that the child will be harmed by living with the parent; (2) placement of the child with the individual takes priority over preserving the day-to-day parent-child relationship because of the presence of physical or emotional danger to the child, or both; or (3) other extraordinary circumstances.
Stand-by Custodian or Designation of Parental Authority (DOPA)
There is a form in the statutes that the parents can use to appoint a non-parent or non-parents as the legal decision-maker known as a stand-by custodian for their children on a temporary basis. This authority can be especially useful when a parent needs to go into treatment or be gone for a period of time from their children such as when they are in the military. It has been used by a parent who is dying or as a stand-by document for a mentally ill person for times when their illness flares and they are unable to care for their children.
A legal guardian is a person charged with the right to make decisions for a child, including decisions about education, health care, and religious training. Legal Guardianship can be used, for instance, by relatives who wish to provide a permanent home for a child in their care. Legal guardianships are established through the probate section of law.
Child & Spousal Support
Child Support Magistrate
Generally, child support is determined during a divorce proceeding or as part of a paternity action and is decided by a family law judge or referee of the court. If, however, child support is the only issue in dispute, it can be determined by a child support magistrate. A child support magistrate acts much like a judge on matters involving child support. The magistrate generally does not, however, have authority to decide other matters such as parenting time or custody.
Minnesota Department of Human Services
The Department of Human Services provides child protection services, out-of-home care, permanent homes for children, child support, food assistance programs, child care services, and children’s mental health services. They are the umbrella agency that oversees any county child support agency.
Child Support Agency
The term child support agency refers to the public authority responsible for child support enforcement. The Minnesota Department of Human Services is the state agency that regulates child support, and each county has a support and enforcement office. Through a variety of methods, including income withholding, driver’s license suspension, occupational license suspension, and tax refund intercept, the county enforcement division is able to assist with the collection of child support payments. They are not a part of the district court and any files they have are not available to judges except through the discovery process.