Clients often ask, “What happens when the custody arrangement is no longer suitable for the child? Can custody be modified in Minnesota?”

A court must maintain the custody arrangement established by prior court order unless the moving party establishes the statutory requirements for a modification as set forth under Minnesota Statutes, Section 518.18 (d). A custody modification, which must be signed by an actual change in the custody labels, is different than a modification to parenting time, which would keep the custody labels in place.

Three Factors

To request a custody modification, the moving party must not only show that a change in the child’s circumstances has occurred which makes a modification necessary to serve the best interests of the child but must also show one of three factors set forth in Minn. Stat. §518.18 (d):

1. Both parties agree to the modification; or
2. The child has been integrated into the family of the movant with the consent of the other party; or
3. The child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development and the harm caused by the change in environment is outweighed by the advantage of a change to the child.

The moving party carries the burden of proof and must first make a prima facie case establishing that statutory requirements (set forth above) by affidavit(s) before a court may allow an evidentiary hearing on a modification of custody. The allegations in the moving party’s affidavits must be supported by “specific, credible evidence.” Conclusory allegations do not require an evidentiary hearing. A motion for modification of a custody order must be denied unless the accompanying affidavit sets forth facts sufficient to justify modification. In considering a moving party’s assertions, the trial court may consider the non-moving party’ submissions as an explanation of the moving party’s assertions.

To modify custody, the moving party must first show 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.” A change in circumstances must be significant and must have occurred since the original custody order or circumstances that were unknown to the court at the time of the prior order. The alleged change can also be based on facts that were unknown to the court at the time of the prior order. See Roehrdanz v. Roehrdanz, (stating that a “change of circumstances must be a real change and not a continuation of ongoing problems”). The change in circumstances necessary to support an endangerment-based motion to modify custody must endanger the children’s physical or emotional health or development.

This is a relatively high burden to prove, and thus must be supported by specific evidence. If you believe your situation meets the above-mentioned factors, you should contact a family law attorney at Heimerl & Lammers to help advise you through the custody modification process.

Modifying parenting time is analyzed under a different statute. However, sometimes there are situations where a modification of parenting time may amount to a modification of custody. For example, the parenting time schedule could be increased for one parent, making their home the “primary residence” of the child and thus being a de facto physical custody modification. These cases are complicated, and it is always best to consult an attorney. If you would like to modify your parenting time schedule, you should contact a family law attorney at Heimerl & Lammers today.