How Can I Modify Child Custody?

A child custody order will invariably affect the wellbeing of your children and influence the dynamics of your family life. We often hear from concerned parents whether it be a mother anxious about her ex-husband’s drinking problem or drug abuse, or a father worried about his ex-wife’s new boyfriend and the way he is treating the kids. The children cry when you drop them off, or you find out that your ex is planning to move out of state with the children. In these and numerous other situations, parents may feel compelled to seek a modification of an existing child custody order to ensure the wellbeing of their children, or simply in response to a change in the family’s circumstances. We hope the following information will be helpful to you in understanding the legal requirements for modifying a child custody order.

Time limitations

Under Minnesota law, you may not make a motion to modify a child custody order unless one year has past since the date on which the current child custody order went into effect. Further, if you had previously made a request to change custody, the law requires that you wait two years before making another request for modification. These are the general rules, however, and there may be extenuating circumstances that would warrant a judge to consider modifying custody before the time periods mentioned above have passed. For example, if the physical or emotional health of the child is currently endangered because of the child’s environment or if the other parent has persistently and willfully denied or interfered with your parenting time, the court may consider a change in custody before the time period has been met. Parents may also agree in writing to a change in custody to avoid the time limitations above.

Circumstances which may warrant a change in custody

For changes to child custody that would affect parenting time, the court has authority to modify the order if it would serve the best interests of the child. However, the court generally will not modify a prior custody order or a parenting plan provision that determines the child’s primary residence, unless:

1. The court finds that a change has occurred in the circumstances of the child or the parents; AND
2. The modification is necessary to serve the best interests of the child.

Even if the above two conditions are satisfied, the judge will only modify the custody order under one of the following circumstances:

1. Both parents agree to the changes in custody;
2. The child has been integrated into the family of the parent seeking custody with the consent of the other parent;
3. 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 a change to the child; or
4. The parent with primary custody relocated to another state despite a court order to the contrary.

Most cases generally fall under the third category, and the parent seeking to modify the order has to show that the child’s health is somehow “endangered.” This requires a fairly strong showing that a change in custody is needed. Evidence of abuse or neglect may suffice. The court may also look to the child’s preference, particularly with older children and in cases in which there is a strong desire on the part of the child to live with the parent seeking custody. The child’s preference alone is generally not enough, but it may be an indication that the child’s emotional health is “endangered.”The court may also modify a custody order or parenting plan if one parent is convicted of certain crimes as outlined in Minnesota law, or if one of the parents requests permission to move out of state with the minor children.

Procedure for modifying an order

The process for a modification of custody is twofold. The first step is to file a motion with the court asking permission to modify custody. The judge will review the paperwork to determine whether the information you provide, and assuming your facts are true, would support a change in custody. This hearing is called a "Nice-Peterson" hearing. If the judge is persuaded, then the judge will order an evidentiary hearing. At the evidentiary hearing, the judge will hear testimony from witnesses and review evidence. The burden to show that a change of custody is necessary is on the party requesting the modification of custody. The judge may also ask for a custody evaluation, a process through which a third party will gather additional facts about the home environment and the health and wellbeing of the parents and children. Based on all of the information obtained, the judge will then decide what facts are true and whether those facts support a change of custody.

As you can tell, these cases are most often very complicated and depend heavily on being able to succinctly put your facts on paper and then through oral testimony. It is highly recommended that you work with an experienced family law attorney. If the proper steps are not taken or if the information you provide is not sufficient, your request may be denied at the first hearing and you will have to wait the two-year period before making another petition.

To learn more about changing the provisions of a child custody order or parenting time plan, contact us to schedule an appointment with one of our qualified family law attorneys. We can assist you through the process of modifying a custody order or preventing your ex-spouse from doing the same. Even, if you just want to know more, we can help to answer your questions and give you the information you need to make choices about your future.