Your initial custody determination is very important. It can be difficult to modify your custody order, because Courts seek stability and predictability in custody arrangements for children. It is designed to keep parents from re-litigating custody orders and adding to the distress and upheaval that custody battles have on families.
Minnesota Statutes section 518.18 governs modification of custody and parenting time orders. The requirements are complex, and anyone contemplating a modification of their custody order should seek the advice of a competent attorney prior to any Court action.
In any case, there must be a change of circumstances that warrants a modification of custody and the change of custody must be in the child’s best interests. Some of the common situations in which you may be entitled to a modification of custody are the following:
- Integration – If the child becomes “integrated” into the family of the non-custodial parent with the consent of the custodial parent. This essentially means that the child changes residence from the parent with primary custody to the parent without primary custody with the consent of the custodial parent. It is important to note that failure to object to a change of residence may constitute consent to integration. (Gibson v Gibson 471 NW 2d 384,386 (Minn. Ct. App. 1991)).
- Agreement – If both parties agree to a change of custody, they may modify the agreement in a Court Order.
- Child endangerment, abuse, or neglect – If a child is being physically, sexually, or emotionally abused in the primary custodian’s home the non-custodial parent should seek advice of counsel immediately to determine if a modification of custody is the correct remedy to take the child out of an abusive environment. Depending on the circumstances, an Order for Protection {link} may be the immediate appropriate remedy.
In some cases, however, the endangerment, abuse, or neglect alleged does not rise to the level required to obtain an Order for Protection. A child’s grades may be suffering, s/he may be habitually truant, or behavioral issues may be out of control with the custodial parent failing to appropriately address these issues. In these cases, it may take a series of professional evaluations and input to inform the Court on the child’s well-being before an Order may be issued to modify custody. As always, seek the advice of counsel prior to any Court action to modify your custody Order. If the evidence is not presented properly in a parent’s pleadings to the Court, that parent may be prohibited from bringing another action in court based on the same allegations for two years. (518.18 (b)).
It is not uncommon that non-custodial parents threaten to modify custody based on a variety of factors. It is very important that custodial parents obtain legal advice prior to agreeing to any modification of custody.
Questions regarding custody? Call 651-756-8781 or email to schedule a free half hour consultation.