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Robert William Gadtke
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Robert Gadtke’s Answers

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  • The father of my child and I have never been married. Is it a given that he can get 50-50 custody if he fights for it?

    The father of my child and myself broke up last October. Our child is now 6 years old. Up to this point, she has been living primarily with me, and stays with her father every other weekend and once a week. Recently, due to his unwillingness to...

    Robert’s Answer

    Patricia is right on the law, but from my experience I fear that the picture she paints is a bit too gloomy. The presumption in favor of joint legal custody does not influence parenting time awards. Judges understand the economic incentives facing a noncustodial parent who can get over the magic 45.1% parenting time hurdle. And a noncustodial parent’s visitation history will likely carry more weight than a sudden interest in being a 50 – 50 parent.

    If you believe your daughter’s best interests require that she reside primarily with you, I wouldn’t give up at this point. Judges worry a lot about ordering a parenting time schedule that dramatically changes a child’s day-to-day life. How would you like it if you were required to alternate between houses every few days? The trouble is that the Judge has to balance that harm against the harm caused by limiting your daughter’s access to her father. Not easy.

    I strongly support Patricia’s advice that you hire a lawyer. I have seen too many clients make too many mistakes when the other side has a lawyer and they don’t. About the cost: None of my clients ever really has enough money to hire a lawyer. They just realize that it’s too costly not to do so.

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  • How can change my sponsership of my wife?

    My wife left my household and moved in with another guy after only one week in US. She lived with me only this short amount of time. She wants a divorce now. How can I cancel my sponsorship, who do I talk to? I cant find anything about it on the N...

    Robert’s Answer

    You need to contact an immigration attorney immediately. Although I don’t routinely practice in this area, I have represented people in divorce cases where this has become an issue. Please don’t rely on the information below without independently confirming its applicability to your case by speaking to an immigration lawyer.

    Sponsoring spouses are typically (although not always) required to execute a Form I-864, which is known as an Affidavit of Support. It obligates the sponsoring spouse to maintain the beneficiary spouse at an annual income at or above 125% of the Federal Poverty Line. See http://aspe.hhs.gov/poverty. It is a contract between the sponsoring spouse and the U.S. Government. It can be enforced by the beneficiary, the U.S. Government, or any state or local agency that provides public assistance benefits to the beneficiary spouse. It is intended to relieve the U.S. taxpayers of the obligation to support the beneficiary spouse.

    Divorce does not end a support obligation under I-864. While there are various ways to end a support obligation, they are too detailed and complicated to discuss here. You need to seek professional legal advice.

    If you contact me directly, I would be happy to provide you with a few telephone numbers for attorneys who regularly practice immigration law. Hope this helps.

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  • I have sole legal custody and sole physical custody of my son. Can I move out of state?

    I reside in Minnesota and was never married to my son's father. I have sole legal and sole physical custoday, and there is a parenting order in place. Can I move out of state if my move does not affect parenting time?

    Robert’s Answer

    No, not without the permission of the court or the consent of the other parent. Usually, parents seeking to move to another state file a motion with the court requesting permission to do so. The fact that the father’s parenting time is not effected is not the answer, although it will likely play a large role in the court’s decision whether to grant your request.

    In considering whether to grant a parent’s request to move, the court reviews the case using a best interest type of analysis. By law, it must consider the following factors:

    (1) the nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child’s life;

    (2) the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration special needs of the child;

    (3) the feasibility of preserving the relationship between the nonrelocating person and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties;

    (4) the child’s preference, taking into consideration the age and maturity of the child;

    (5) whether there is an established pattern of conduct of the person seeking the relocation either to promote or thwart the relationship of the child and the nonrelocating person;

    (6) whether the relocation of the child will enhance the general quality of the life for both the custodial parent seeking the relocation and the child including, but not limited to, financial or emotional benefit or educational opportunity;

    (7) the reasons of each person for seeking or opposing the relocation; and

    (8) the effect on the safety and welfare of the child, or of the parent requesting to move the child’s residence, of domestic abuse, as defined in section 518B.01.

    Before 2006, noncustodial parents (in your case, the father) were required to prove that an out-of-state move was not in the best interests of the child. This could be tough to do. Courts would resolve all doubts in favor of allowing the move. If the father couldn’t prove that the move would be harmful to the child, the mother would be allowed to leave the state.

    In 2006, however, the law changed. The burden of proof was shifted from the noncustodial parent opposing the move to the custodial parent requesting the move. In other words, the custodial parent (in this case, you) now bears the burden of proving that the move is in the best interests of your child. All doubts are resolved in favor of denying the move.

    In my experience, different judges tend to require different amounts of evidence to satisfy the burden of proof. Some judges allow custodial parents to move if the parent has a job offer in the new state. Other judges do not. Some judges require less evidence to move to a surrounding state. Some judges do not. Whether a parent is granted permission to move depends largely upon the particular judge assigned to your case.

    Finally, it is also important to understand that if you are / have been the victim of domestic violence, the burden of proof is shifted to the noncustodial parent to oppose the move. These cases can be complicated. I recommend that you seek the assistance of an attorney. Good luck.

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  • How can the county assess "potential" income to a person that has worked the same job for over 9 years.

    My son works as a server and with tips averages approx. $21,000.00 per year for a 24 hour work week. He has had this job for over 9 years and now when the county figures his child support they added "potential income" of the additional 16 hours pe...

    Robert’s Answer

    This is a tough question. There is no easy answer. Potential income can be attributed to anyone who is “voluntarily unemployed, underemployed, or employed on less than a full-time basis, or there is no direct evidence of any income.” This means that there are potentially four (4) different categories of people against whom income can be attributed. The category you mention is just one of them. Potential income is frequently attributed to people who work less than full-time, particularly because the law provides that it is rebuttably presumed that a parent can be gainfully employed on a full time basis.

    But, just because potential income could be attributed to your son does not mean that it should be attributed to your son. County Attorneys are advocates in the court system. They are not neutral. If your son does not believe the proposal being submitted is fair, he should challenge it in court. Judges make their own decisions. They are not bound by the recommendations of the County Attorney. Make sure, however, that he follows the rules of evidence and timely submits his pleadings. I would strongly recommend that he hire an attorney. I have seen too many cases where people hurt themselves by acting as their own lawyer.

    The more complicated part of your question deals with the interplay between your son’s work schedule and his parenting time. If he truly has a court order granting 50-50 parenting time (and I say court order because without one he is not entitled to a child support offset), I think he has a legitimate argument. What’s the alternative? Put the kids in daycare? That does not seem attractive.

    I would have him consider the following questions:

    1. Can he show facts that would rebut the presumption that he can be employed on a full-time basis? He could point to the parenting time schedule.

    2. Is 40 hours a week a reasonable assumption given his profession?

    3. Should he ask for a deviation from the child support guidelines pursuant to Minnesota Statutes Section 518A.37, subdivision 2?

    4. What is the real economic impact of calculating his income this way? Sometimes raising a person’s income does not effect the child support obligation. The new statute is not always intuitive.

    I hope this helps.

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