April 13, 2015
One of the more frequently asked questions in my practice is what rights grandparents have to visit their grandchildren. Generally, grandparents do not have a right to visitation with their grandchildren if:
both parents are alive;
a divorce action or custody action has not been commenced between the parents; and
the grandchild has never resided with the grandparents for a significant period of time.
Part of parents’ due process right under the Constitution is to make child-rearing decisions, including with whom their child associates. Therefore, grandparents are at the mercy of their son or daughter to arrange visits with their grandchildren unless:
their son or daughter is deceased;
a dissolution, custody, legal separation, annulment or determination of paternity is commenced by one of the parents;
the child has resided with the grandparent for a period of twelve months or more and is subsequently removed from the home by the child’s parents; or
if a step-parent adopts the child and either the grandparent’s child is deceased or the grandparent’s child’s rights have been terminated pursuant to the step-parent adoption.
In these circumstances, grandparents and even great-grandparents do have a right to seek reasonable visitation with the child under Minnesota Law (Minnesota Statute Section 257C.08).
Before the court may award grandparent visitation they must find that the visitation rights would be in the best interest of the child and, by clear and convincing evidence, would not interfere with the parent/child relationship (See e.g. C.D.G.D. v. Darst, 800 N.W.2d 652 (Minn. Ct. App. 2011).
In making this determination, courts must consider the amount of personal contact between the parents or grandparents of the child and the child prior to the application for grandparent visitation rights. The more frequent the prior contact, the more likely the courts are to find that continued contact is in the child’s best interest. Another common argument that continued contact is in the child’s best interest is that it furthers the child’s interest in maintaining or establishing connections with that side of the family.
It is extremely important to remember that the courts in this context are focused on the right of the child to see the grandparents and not on the grandparent’s interest. Therefore, the focus always remains on what is good for the child, not what is good for the child’s grandparent. Further, because of the parent’s fundamental right to the care, custody and control of his or her child carries with it the presumption that the parent is acting in the best interests of the child, the court must consider the parent’s own determination regarding grandparent visits. It is also not generally appropriate for the court to award as much visitation to a grandparent as it would to a noncustodial parent, so an every-other-weekend visit schedule is probably not appropriate, but a once-a-month visit may be appropriate, depending on the facts of the case.
Stepparent Adoption in Minnesota
If you marry someone who has a child, you may consider legally adopting the child. In order to adopt your stepchild, you must:
terminate the parental rights of the other parent (not your spouse);
petition the court for adoption and file all necessary paperwork;
have social services conduct a background study and finger print check; and
attend the final court hearing.
Termination of Parental Rights
Termination of parental rights can be voluntary or involuntary. In a voluntary termination of parental rights, the biological parent consents to the adoption. One incentive for the other parent to consent to the adoption is that he or she will no longer be obligated to pay child support. If the other parent will not consent, you must demonstrate abandonment of the child by that parent to the court. Because this is much more costly and difficult, it is advisable to first attempt to obtain consent to termination of parental rights.
Petition for Adoption
After you obtain consent to the adoption or have demonstrated abandonment, you will file a petition for adoption with the Court and proposed order. The petition provides basic information to the court and affirms that the adoption is in the best interest of the child. The Court will look at the length of the marriage and the financial ability of you and the nonterminating parent to support the child.
You will also typically file a Motion to Waive Post-Placement Assessment and Affidavit in Support of Motion to Waive Post-Placement Assessment. A post-placement assessment involves a social service agency evaluating your home and living conditions. In addition, if you have not resided in Minnesota for one year, you will have to file a motion and affidavit to reduce the residency requirement to thirty days. Finally, you will submit the following documents:
a certified copy of the child’s birth certificate;
the consent signed by the terminating parent (if voluntary);
the consent signed by the child if they are age 14 or older;
a list of the child’s personal property; and
the results of the search of the Father’s Adoption Registry. You can find information about requesting a search of the Father’s Adoption Registry through the Minnesota Department of Health website.
Background Study and Fingerprint Check
In addition to terminating parental rights and filing a petition for adoption and other required paperwork with the Court, you must submit to a background study and fingerprint check by social services. The background study and fingerprint check must be conducted on every adult in the adoptive home age 18 and older. Unlike the post-placement assessment, this requirement cannot be waived by the Court.
Final Court Hearing
After you have completed all of the above requirements, you will attend the final court hearing with your spouse and the child to be adopted. The Court will ask you questions about your petition and also may ask the child questions as well. As a family law practitioner, this is my favorite type of hearing because everyone is happy to be there.
Wills and Living Trusts are basic components of an estate plan. But what is the difference between the two and which is right for you?
The Basics of Estate Planning
Before discussing the differences between a Will and a Living Trust, it is important to understand the definition of estate planning. Estate planning is the process of anticipating and arranging for disposal of your property during your life and after your death. A basic estate plan typically includes a Health Care Directive, Durable Power of Attorney, and a Will or Living Trust.
A Health Care Directive outlines your preferences for health care during a serious illness when you are unable to communicate your preferences. It also typically appoints someone to make health care decisions for you if you are unable to communicate or are not mentally competent to make a decision. A Health Care Directive is also commonly referred to as a Living Will or Advance Directive.
A Durable Power of Attorney authorizes someone to represent you or act on your behalf in financial matters. It is called “durable” because it continues to be effective if you become incompetent. The primary purpose of the Durable Power of Attorney, in this context, is to avoid the need for appointment of a Guardian or Conservator if you become mentally incompetent to manage your finances.
What is a Will?
A Will is a written document that indicates how your property will be distributed at the time of your death. It is not effective until after your death and can be amended or revoked during your lifetime. Even if you have a Will, your estate will still have to through probate except in limited circumstances. Probate is the court process of administering your estate.
What is a Living Trust?
A Living Trust is a legal arrangement in which you (Trustor) give fiduciary control of your estate to a person or institution (Trustee) for the benefit of your beneficiaries. It is referred to as “living” because it is created during your lifetime. A Living Trust can be revocable or irrevocable, but will usually be revocable to allow you to change the terms of the Living Trust during your lifetime.
When utilizing a Living Trust for estate planning, your property is actually retitled into the name of the Living Trust or to the Trustees of your Living Trust. If your property is retitled in this fashion, you are able to avoid probate. This is important because your estate will avoid the cost and inconvenience of a probate proceeding and it will allow your financial matters to remain private. Further, unlike a Will, a Living Trust is immediately effective, so it can be used for incapacity planning.
While the advantages of avoiding probate and providing for incapacity planning sound attractive, the disadvantage of a Living Trust is that it is more costly to set up. This is because you must transfer title of your property to the Living Trust in order for it to be an effective estate planning tool. If you do not transfer property into the Living Trust, your estate will be subject to probate and the associated cost and inconvenience.
Will vs Living Trust
In deciding whether a Will or Living Trust is more appropriate for your situation, the primary factor is cost. A Living Trust has advantages beyond a Will (i.e. incapacity planning and avoiding probate), but will involve more upfront effort and expense. If you are not able or willing to bear this initially higher expense, a Will may be the better option for you.
Attorney Jay A. Tentinger presented a 90-minute seminar for the National Business Institute on April 2, 2014 on the topic of farm accident injuries. The seminar was attended by attorneys interested in litigating cases involving farming accidents, insurance adjusters, and others interested in the legal issues surrounding farming accidents.
Jay Tentinger grew up on a farm and is still active in farming. He owns farmland and helps with crops during the spring and fall farming seasons. As an experienced farmer he has an extensive knowledge of farming equipment tools, how to handle livestock, as well as how to preserve and protect the value of crops.
With his extensive legal experience and with his background in farming, Jay Tentinger understands the extent of injury and damage in farm accident cases. Having a deep appreciation for the practices of farming and being a farmer himself, he helps clients best protect their rights and interests if something goes wrong. He understands the nuances of the farming industry and can effectively protect clients’ rights and long-term interests when they have suffered property damage or an injury caused by farming equipment and farming accidents.
We are experienced in farm accidents and damage involving:
Injuries caused by silage cutter or balers
Farm augers and mowers
Maiming by harvesters
Misrepresentation/fraud related to infected or damaged livestock
All-terrain vehicle accidents
Injuries sustained by animals
Injuries caused by animals
Go to following link if you are interested in listening to Jay Tentinger’s farming injury litigation seminar.