Custody Modification: What do you have to Prove?

Posted on Tuesday, June 26th, 2018 by Marc Beyer and is filed under Child Custody,  Child Support,  Children,  Divorce,  Parents.

In contested child custody cases, the Court determines the issue of custody and parenting time based upon what is in the “best interests of the child.” This is not an arbitrary determination. Rather, the Court determines a child’s best interests by applying the 12 best interest factors from the statute to the facts of the case. See MINN. STAT. §518.17. Subd.1.

During this initial determination of custody, there is no presumption in favor of either parent. Both parents stand on equal footing.

But, once custody and parenting time have been determined, if a parent wants to change custody, they must overcome a greater standard. This is because the law favors finality. The Court (and the Legislature) do not want parents seeking to change custody on a whim. If the parents cannot agree to a change in custody, in order for the Court to order it over the objection of the custodial parent, there must be a good reason for it.

With some exceptions, then, the law provides that the Court shall not modify a prior custody order unless it finds that the present environment endangers the child’s physical or emotional health. We call this the “endangerment standard.” In other words, once custody has been established, if a parent later wants to modify custody, they need to prove that the child is endangered while living with the other parent. This can be difficult to prove.

And, a recent decision of the Minnesota Supreme Court held that the endangerment standard also applies when the parent without physical custody is only seeking to modify the schedule to equal parenting time and is not necessarily seeking the majority of the parenting time. See Christensen v. Healy, A16-1056.

These issues can be tricky. One of the lessons is do not agree to less parenting time based on a belief that you can always seek to modify the schedule down the road. If the modification you seek is significant enough, you will be subjected to a greater legal standard than during the initial determination phase.

Every case is unique. Every law has its exceptions. It is not possible to give across-the- board advice. Seek legal advice from a family law attorney if you have questions about custody and parenting time.

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