Family Law | Can child custody be changed and how?

Changes to child custody orders can be complex and statutory conditions must be met.

Child custody can be modified in Minnesota, but parents should know that the process and criteria that must be met can prove difficult. The court based the original custody order on what was in the child (or children's) best interests. This standard is important in any custody evaluation; however, the court has some additional conditions to take into account when determining whether a change is warranted. The requirements for a custody modification are governed by Minnesota Statues section 518.18.

Meeting the court's modification standard

In general, a motion to modify custody cannot be submitted to the court unless it has been at least one year since the original divorce or legal separation order was entered and the custody order went into effect. However, if both parents agree (in writing) to a custody change, the one-year limitation will not apply. In addition, there is a two-year wait to submit a modification motion when the request has been made previously. It does not matter if the previous motion was granted or denied.

Exceptions to the one-year limit include consent of the parties, evidence of physical or emotional abuse (cases of endangerment), or if one parent is persistently and willfully interfering in the other parent's court ordered parenting time. In addition, there are some crimes that convictions of which can form the basis for the court to change custody or parenting time of the parent convicted. A list of criminal offenses can be found in Minnesota Statues section 631.52 subdivision 2.

The best interests of the child will be the court's paramount concern when deciding if a change is warranted, but the conditions indicated in the paragraphs above are hurdles that must be cleared before the best interest analysis is undertaken. This means that the change in circumstances must be considerable to reach the level that modification is deemed in the child's best interests.

Reasons that you may modify custody

In addition to meeting the threshold time requirements above, the parent seeking the modification must be able to prove the following to the court:

  • There has been a significant change in circumstances of the parties or child;
  • The change is recent and occurred after the original order was entered (or was unknown at the time of the original custody order); and
  • A custody modification must be made to serve the child's best interests.

In addition, the parent requesting the modification must be able to prove to the court one of the following additional factors:

  • Unwarranted denial of, or interference with, a duly established parenting time schedule;
  • The child's present environment endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of the change to the child;
  • The child has been integrated into the family of the petitioning parent with the consent of the other party;
  • Both parties agree to the modification; or
  • The court denied a request of the primary custodial parent to move the residence of the child to another state, and the primary custodial parent has relocated to another state despite the court's order.

The factors of endangerment or interference with court ordered parenting time could also serve to meet the threshold time related requirements discussed above. What the court regards as a sufficient change in circumstances may depend on the unique facts of the case. Some examples of a sufficient change may include situations where child neglect is present, the custodial parent is living with an abusive boyfriend or girlfriend or a parent is abusing drugs or alcohol.

It should be noted that if a change in parenting time but not custody has been requested, the court applies a different standard then that discussed above so long as the requested parenting time does not restrict the parenting time of the other parent or change the primary residence of the child.

Why you should contact an attorney for help

Modifying your child's custody order can be difficult in Minnesota. The parent seeking a modification must prove certain circumstances to the court in order to approve the modification. For these reasons, it is important to speak with an attorney at Dougherty, Molenda, Solfest, Hills & Bauer P.A. who is experienced in child custody matters. An attorney can discuss why you are seeking the modification, determine if you have sufficient grounds and help you through the process to modify your existing custody order.