How to Change Custody

Modifying Child Custody in Minnesota

Life continues after the divorce or child custody order has been finalized. Months and eventually years go by while mostly successfully co-parenting with your former spouse. And then, for whatever reason, circumstances change. You are now questioning the current child custody order and want to know what your options are for changing child custody. In a word: limited. In two words: very limited. Of course, if both parents agree to change child custody, modification may be accomplished by filing a stipulation for changing custody with the court. The far more likely scenario, however, is that the other parent will not agree to a modification.1 Asking for a child custody modification will almost always involve input from many third parties, including mental health professionals, teachers and other school administrators, and potentially law enforcement.

A parent seeking to modify child custody in Minnesota must meet a two-prong test. First, a parent must show a change in the child's circumstances has occurred that necessitates a modification of custody for the child's best interest. One parent could have moved a substantial geographical distance or there was a change in the living circumstances of the child. In sum, the change has to be an actual change-not merely that the child is another year older, for example.

Second, a parent must show that the child has been integrated into that parent's family with the consent of the other party or that the child is endangered. Because the former is not usually the case, "endangerment" is essentially the legal standard you must show when trying to change custody labels; not merely what is in the child's best interest. This should sound daunting to prove because it is. Meeting the legal standard of proving endangerment rarely happens.

Because changing custody only rarely occurs, it is critical that you get it right the first time. Do not agree to a custody arrangement in your divorce or initial custody order, thinking that you can merely modify it later. Child custody modifications generally are not entertained by the Court within a year of the initial order. And, thereafter, a motion to modify child custody generally cannot occur more than every two years, regardless of whether the previous motion was granted or denied.

Whether and how to address child custody matters in Minnesota is ultimately something that should be discussed with an attorney, because these cases are complicated and will vary from case to case. This is not advice on your own case. Please contact me for specific advice.

1 It is important to note that custody is different than parenting time-the actual amount of time a child spends with each parent, regardless of custody labels. Changing parenting time has different rules.