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As any divorced parent knows, family law matters like child custody, parenting time schedules, and child support aren’t really over even when they’re over. If you have young children, your custody, parenting time, and child support orders may be in place for well over a decade, and in that time, all kinds of changes can happen. Some are predictable, and some come out of left field. But one thing that is very likely is that your order will need to be modified at some point to meet your family’s changing circumstances.
There is a certain tension in family law cases like these. On the one hand, it is important for the court to be flexible enough to respond to changes in your family’s situation. On the other hand, as you know, children need stability and predictability. You can imagine what a disaster it would be for them if their parents were running back to court every couple of months to try to change custody, parenting time schedules, or support. Not only would the constant change be incredibly stressful for the kids, but courts would be overrun with arguing parents.
How do Minnesota courts balance the competing needs for flexibility and stability? They make changing a custody, parenting time, or child support order possible—but not necessarily easy. In other words, courts require a “substantial change of circumstances” in order to change custody, significant change in parenting time, or child support. When is a change of circumstances substantial enough to warrant a modification? In this blog we will only be discussing a substantial change that warrants a modification of custody and parenting time. Look for a future blog on a substantial change in child support.
First things first: if both you and the other parent agree on a proposed change in custody and/or parenting time schedule, the court will generally approve your agreement so long as the proposed modification seems to be in your child’s best interests. Of course, parents often don’t agree, and so the one seeking a change might need to bring a motion with the court for a modification of the existing custody order.
The Minnesota custody modification statute states, in a nutshell, that to modify child custody or parenting time in Minnesota, the court must find that “a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child” Just as with any custody order, the court must also find that the proposed change is in the child’s best interest.
How does all of this get before the court? As a practical matter, there needs to be a “threshold” met before you can get into court and present evidence regarding your position. That threshold, in Minnesota, is known as the Nice-Petersen Standard, after a 1981 Minnesota Supreme Court Case.
In Nice-Petersen v. Nice-Petersen, a father moved for a modification of custody of his young daughter. The mother had been granted primary custody in the couple’s divorce a few years earlier, and the father wanted joint custody. The father appealed, arguing that the Hennepin County District Court erred by denying his petition without ordering an evidentiary hearing on the matter. The Minnesota Supreme Court affirmed the lower court’s ruling, stating, “As a practical matter, the burden is upon the movant to establish satisfactorily on a preliminary basis that there has occurred a significant change of circumstances from the time when the original or amended custody order was issued. Peterson v. Peterson, 308 Minn. 297, 308, 242 N.W.2d 88, 95 (1976). Moreover, the significant change of circumstances must endanger the child's physical or emotional health or the child's development. See Minn.Stat. § 518.18(d)(iii) (1980).”
What that means is that if you want to change custody of your child, or significantly change your parenting schedule, you need to submit an affidavit (sworn statement) to the court stating facts that show some major change that has affected your child’s well-being. Based on those facts, if the court agrees that the information provided enough , if presented at trial, has been a substantial change of circumstances, it will schedule an evidentiary hearing to allow both parents to present testimony and other evidence in support of their respective positions.
Most of the time, when parents say they want a change in custody, what they really mean is that they want a change in parenting time—usually more time with their child, or perhaps a different configuration of time. A change of custody means essentially changing the child’s principal residence, which is a big deal.
Because a change of custody is so significant, courts don’t grant one lightly. What are some fact patterns that could represent a change in circumstances that are significant enough to warrant changing custody?
One important thing to note: the standard for a change in parenting time is different from that for a change in custody. A parent cannot do an “end run” around the more stringent requirements for a custody change by asking for a change in parenting time that, in effect, changes custody. For example, if you have your child 75% of the time now, and the other parent requested a change of parenting time that gave them four days per week with your child, that would really be a request for a change of custody, not a simple modification of parenting time.
Whether a change of circumstances is substantial enough depends on the specific facts of the situation. For instance, if the primary custodial parent has a new romantic partner living in the home and that person is abusive to the child, a court could easily determine that that is a substantial change of circumstances. Just having a new person living in the household, however, probably wouldn’t justify changing custody.
Being late to drop off the child to the other parent for parenting time once or twice wouldn’t represent “unwarranted interference with” a parenting time schedule, but consistently refusing to make the child available for parenting time for months probably would. It’s essential to work with an experienced family law attorney who can present the relevant facts to the court in a way that best supports your position.
A few other examples might help to illustrate just what it takes for a change of circumstances to be “substantial.”
In one case, a mother who had primary custody got frustrated with her teenage daughter. She kicked the girl out of the house, and she went to stay with her father. This living arrangement went on for months, during which time the father bought the daughter a pet, gave her her own bedroom, and the daughter started school in his school district and was making new friends. When the father petitioned for a change of custody, the court granted it, agreeing that the girl had been “integrated into his family” and that the mother had effectively consented by having turned the daughter out of her home.
Another example emphasizes that a change in circumstances isn’t the only consideration; the proposed move must also be in the child’s best interest. In this example, a sixteen year old boy and his father, who had primary custody, got into a physical fight on one occasion. The boy’s mother petitioned for a change of custody. The trial court disagreed that a single altercation with no injuries represented a “substantial change in circumstances.” In addition, it turned out that the mother’s new husband had shown a pattern of abusive behavior toward the son. So, even if the fight with the father had represented a substantial change, the court likely would not have granted the custody modification because it would have left the boy in an even more unsafe situation.
The bottom line is this: child custody modifications in Minnesota are highly fact-specific. To be successful, you need an attorney who not only understands the law well, but who knows how to help you present the facts in a way that best supports your case.
To get help with changing child custody or responding to a motion to modify custody, contact Mundahl Law at 763-575-7930 to schedule a consultation.
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