What is Social Early Neutral Evaluation?

Cortney E. Whitehouse, Esquire, Bloch & Whitehouse, P.A., 8120 Penn Avenue South, Bloomington, Minnesota, 55431, (952) 224-9977, cortney@blochandwhitehouse.com, http://www.blochandwhitehouse.com.


It used to be that parties who could not agree on custody and/or parenting time were referred to a custody evaluation where a public employee would conduct a lengthy, in-depth investigation into the disputed issues and make a recommendation to the Court in that regard. Or, parties would pay thousands and thousands of dollars for a private custody evaluator to do the same. Today, with Court budget cuts and a growing belief among the judiciary and other professionals that parents can and should make their own decisions about the fate of their children, Social Early Neutral Evaluation (SENE) has emerged as a highly effective tool for resolving child-related disputes.

SENE is a confidential process by which parents meet with a male and a female evaluator for a period of 3 to 4 hours (and occasionally a second meeting of equal or less time) early on in the case to talk about which custody and parenting time arrangement is in the best interests of their children moving forward.  The use of two evaluators eliminates a gender imbalance that may occur if only one evaluator were used.  The process is confidential which means that, with few exceptions, any information that is gathered or ideas that are exchanged, cannot be reported to the Court by the evaluators, the parties or opposing counsel in the event that an agreement is not reached.  In an effort to minimize conflict, SENE is done early in the divorce process before parties have spent time, money and energy in court and hurled nasty Affidavits at each other in that process.  The aim is to have parents hear from experienced professionals what the likely outcome would be if they spent the time, money and energy going through a full custody evaluation, so that they can see the benefit of resolving the case now.

In an SENE session, the evaluators first introduce themselves and discuss the confidentiality of the process and their expectations for the meeting and ask to see pictures of the parent’s children.  Then, the Petitioner in the case goes first and explains what they believe is in their children’s best interest relative to the issues of custody and parenting time and why.  During that time, the evaluator typically ask questions and the Respondent is expected to take notes and not to interrupt.  Then, it is the Respondent’s turn to explain what they believe the best custody and parenting time arrangement is for their children and why.  The evaluators typically ask the Respondent not to respond to everything that they heard from the Petitioner but to start from the beginning.  And, the Petitioner is expected to refrain from interruption and take notes.  Each party is then given an opportunity to respond to the other party.  Then, everyone takes a break and the evaluators go back to their offices and talk about their recommendations.  When they are ready, everyone reconvenes and listens to the recommendations.  Then, another break is taken for the parties to discuss the recommendations with their attorneys and everyone returns to the table to try to resolve the case.

The cost and provider list for SENE varies from county to county.  Hennepin County still has a court services department to which SENEs are referred and they are done on a sliding fee scale.  The other metro area counties are without court services departments at this time.  Instead, they provide a list of qualified evaluators for parents to choose from.  Generally, in the other counties, parties pay 1/2 of their attorney’s hourly rate to each of the evaluators.  Whatever the cost, it is substantially less than a custody evaluation and any agreed upon solution is much less likely to lead to further future litigation.

Additional information about ENE, including provider lists and fee information can be found at www.mncourts.gov.

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Parenting Time

Cortney E. Whitehouse, Esquire, Bloch & Whitehouse, P.A., 8120 Penn Avenue South, Suite 550, Bloomington, Minnesota 55431, (952) 224-9977, cortney@blochandwhitehouse.com, www.blochandwhitehouse.com

Cortney E. Whitehouse, Esquire

What was once called “visitation,” is now known as “parenting time.” Like custody, the Court asks what is in the best interests of the minor children when it determines parenting time and typically hones in on the age of the children, caretaker patterns that the children have grown accustomed to and factors such as chemical health, mental health and domestic abuse in its analysis.

Minnesota law provides that most parents are entitled to at least 25% of the parenting time, which is typically determined by counting overnights.

It further provides that, upon the request of a parent, a Court Order for parenting time must specify a regular, holiday and vacation parenting time schedule.  I meet with many folks who feel that a specific parenting time schedule is not necessary because they feel like they can work it out.  While sometimes painful to consider, I caution them to look to the future where their ex-spouse has a new significant other with his or her own traditions and/or children and the impact that that may have on the ability to work things out.  I see too many cases with no schedule post-divorce.  In my view, it is better to set a specific schedule and choose not to follow it than to be without a schedule in the midst of a Christmas Eve dispute and have nothing to fall back on.

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Cortney E. Whitehouse, Esquire, Bloch & Whitehouse, P.A., 8120 Penn Avenue South, Suite 550, Bloomington, Minnesota 55431, (952) 224-9977, cortney@blochandwhitehouse.com, www.blochandwhitehouse.com

When I started practicing law, the custody labels mattered.  If a parent was a child’s “sole physical” custodian, he or she received a set percentage of the other parent’s net income for child support.  In addition, a “sole physical” custodian was permitted to move his or her children out of Minnesota so long as they were not doing so for the purpose of denying the other parent parenting time. 

Neither is the case today.  Child support is now based on both parties’ incomes and the percentage of time that the parents spend with the children.  Likewise, a parent’s ability to move a child out of the state of Minnesota is now more restricted and not dependent on the custody label.  While the label can matter if a decree is being interpreted by an out of state court or under certain tax scenarios, those issues can be addressed in the decree, making the labels virtually irrelevant.

Still, it is not uncommon for one party to feel very strongly about the physical custody label.  In cases that settle, we see parents calling equal parenting time schedules, “sole physical custody,” and lopsided parenting time schedules, “joint physical custody,” just to get past the label stigma.  In other cases, we see parties spending precious time and funds litigating the issue.

I very much look forward to the day when the labels are no longer.

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Cortney E. Whitehouse, Esquire, Bloch & Whitehouse, P.A., 8120 Penn Avenue South, Suite 550, Bloomington, Minnesota 55431, (952) 224-9977, cortney@blochandwhitehouse.com, www.blochandwhitehouse.com

The statute regarding custody of children sets forth two important additional rules. First, it states that the Court may not give greater weight to one of the best interest factors to the exclusion of the others.  That is, the Court must address all of the factors in its Order prior to issuing its decision.  As a practical matter however, certain factors tend to come to the surface and tip the scales in custody cases.  In some cases where one parent has served as a child’s primary caretaker during his or her lifetime, said parent may emerge as the child’s sole physical custodian during the divorce process.  Likewise, in cases involving untreated substance abuse or mental health issues, those issues often become the focus of an unfavorable custody decision.

Second, the law states that the Court may not consider conduct of a parent that does not affect the parent’s relationship with the child.  There is typically a lot of hurt that goes along with going through a divorce and in many cases, one spouse has had an affair and is already in a new relationship.  While it may be very unfair, barring some danger to the children, the affair is typically not considered by the Court in the proceeding.  Likewise, while it can be difficult to discuss, the proliferation of the internet has led to more discussion about pornography in divorce proceedings.  And again, generally, the Court does not address the issue as it relates to custody unless it has a direct impact on the children.

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Cortney E. Whitehouse, Esquire, Bloch & Whitehouse, P.A., 8120 Penn Avenue South, Suite 550, Bloomington, Minnesota 55431, (952) 224-9977, cortney@blochandwhitehouse.com, www.blochandwhitehouse.com

The Minnesota legislature has created a list of factors that our Courts are required to consider when they determine custody of children.  The factors are used by custody evaluators when they make recommendations to the Court regarding custody.  They also influence the feedback of early neutral evaluators and guide parent’s custody negotiations during the divorce process.

The list is commonly referred to as the “Best Interest Factors” and is set forth in Minnesota Statute 518.17 as follows:

(1) the wishes of the child’s parent or parents as to custody;

(2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;

(3) the child’s primary caretaker;

(4) the intimacy of the relationship between each parent and the child;

(5) the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests;

(6) the child’s adjustment to home, school, and community;

(7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(8) the permanence, as a family unit, of the existing or proposed custodial home;

(9) the mental and physical health of all individuals involved; except that a disability, as defined in section 363A.03, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child;

(10) the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child’s culture and religion or creed, if any;

(11) the child’s cultural background;

12) the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and

(13) except in cases in which a finding of domestic abuse as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

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Cortney E. Whitehouse, Esquire, Bloch & Whitehouse, P.A., 8120 Penn Avenue South, Suite 550, Bloomington, Minnesota 55431, (952) 224-9977, cortney@blochandwhitehouse.com, www.blochandwhitehouse.com

My next several postings will focus on custody and parenting time.  There are 2 different types of custody in Minnesota, legal custody and physical custody.

Legal custody is defined as the right to determine a child’s upbringing, including education, health care, and religious training.  There is a very strong presumption under Minnesota law that parents will share joint legal custody; that both parents will participate in making major decisions in a child’s life.  However, that presumption can be overcome upon proof of domestic abuse by one parent against the other or that there is such a strong divide between parents on the issue of education, health care and/or religion that it would be detrimental to the child to not select one parent to make those decisions.  In those cases, one parent would be awarded sole legal custody.

Physical custody is defined as the routine daily care and control and residence of a child.  Like, legal custody, physical custody can be awarded to one parent solely or to both parties jointly.  However, unlike legal custody, there is no preference under the law for one form of physical custody over the other.  Rather, physical custody is determined on a case-by-case basis.

Minnesota law sets forth several factors that must be addressed when a Court determines whether custody will be awarded to one parent or both parents.  My next post will address those factors.

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Cortney E. Whitehouse, Esquire, Bloch & Whitehouse, P.A., 8120 Penn Avenue South, Suite 550, Bloomington, Minnesota 55431, (952) 224-9977, cortney@blochandwhitehouse.com, www.blochandwhitehouse.com.

All of the options related to divorce can be very overwhelming when you are in the thick of it.  The most important thing to take away from my postings about divorce options is that they exist.  You can pursue court intervention if you need to.  You do not have to go to court if you and your spouse do not want to.  This is your family and your future and your divorce should be tailored to your needs.

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