Modification of Custody

Anytime a client wants to change a custody label, this is considered a modification of custody. This could include changing physical or legal custody from joint to sole or changing sole custody from one parent to the other. A modification of custody will usually require an initial motion hearing, followed by an evidentiary hearing.

Standards for Modification

There are two different standards that are discussed when looking to modify custody.

Endangerment Standard: This is the default and most common standard that must be met when looking to modify custody. Per Minnesota Statute Section 518.18 the petitioning party must make a showing of ALL the following:

1. the circumstances of the children or custodian have changed;
   1. “change in circumstances must be significant and must have occurred since the original custody order; it cannot be a continuation of conditions existing prior to the order.” Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997).
2. modification would serve the children’s best interests;
3. the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development; and
   1. *When conducting a child-endangerment analysis, a district court must (1) base its analysis on the children’s present environment and (2) address all relevant evidence of endangerment. Hassing v. Lancaster, 570 N.W.2d 701, 702-04 (Minn. App. 1997).
   2. “The concept of endangerment is unusually imprecise, but a party must demonstrate a significant degree of danger to satisfy the endangerment element of section 518.18(d)(iv).” Goldman v. Greenwood, 748 N.W.2d 279, 285 (Minn. 2008) (quotation omitted).
   3. *“[T]he danger may be purely to emotional development.” Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997).
4. the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child

 

 

Best Interests Standard: This is a less common standard. Best interest standard alone only applies if the parties specifically stipulated in their custody order that future modifications of custody would be based on the Best Interest Standard. Per Minnesota Statute Section 518.175 subdivision 5(b), the petition party must make a showing of ALL of the following:

1. modification would not change the child’s primary residence
2. modification would serve the best interests of the child. (based on the best interest factors)

De Facto Modification of Custody (Requesting significant parenting time change)

When one party seeks to change parenting time only, but the change in parenting time is significant, the Court may consider this a De Facto Modification of Custody, meaning that although the party isn’t seeking a change in physical custody, their proposed parenting time modification is a substantial change that would modify the parties’ custody arrangement (example – significant change in the routine daily care, control, and residence of the child.) There are many published court of appeals decisions on this that can be reviewed and used to best support your particular situation. However, a common quote/decision that is referenced and can be used to help guide you is below:

“In sum, we hold that when determining whether a motion to modify parenting time is a de facto motion to modify physical custody for purposes of deciding whether the endangerment standard applies, a court should consider the totality of the circumstances to determine whether the proposed modification is a substantial change that would modify the parties’ custody arrangement. The factors considered may include the apportionment of parenting time, the child’s age, the child’s school schedule, and the distance between the parties’ homes, but these factors are not exhaustive.” Matter of Custody of M.J.H (Minn. 2018)

 

Timeframe for Modification of Custody

Summary:

• Must wait 1 year after original order to request modification (unless there is interference or endangerment)
• Must wait 2 years after any subsequent motion to modify custody (unless there is interference or endangerment)

Per MN Statute 518.18

(a) Unless agreed to in writing by the parties, no motion to modify a custody order or parenting plan may be made earlier than one year after the date of the entry of a decree of dissolution or legal separation containing a provision dealing with custody, except in accordance with paragraph (c).

(b) If a motion for modification has been heard, whether or not it was granted, unless agreed to in writing by the parties no subsequent motion may be filed within two years after disposition of the prior motion on its merits, except in accordance with paragraph (c).

(c) The time limitations prescribed in paragraphs (a) and (b) shall not prohibit a motion to modify a custody order or parenting plan if the court finds that there is persistent and willful denial or interference with parenting time, or has reason to believe that the child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development.

Establishing Basis for Modification (Prima Facie)

District court is required under section 518.18(d) to conduct an evidentiary hearing only if the party seeking to modify a custody order makes a prima facie case for modification.” See Silbaugh v. Silbaugh, 543 N.W.2d 639, 642 (Minn. 1996); Morey v. Peppin, 375 N.W.2d 19, 25 (Minn. 1985); Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).  A party who moves to modify custody based on endangerment must make an initial factual showing by submitting an affidavit in support of the motion. Boland v. Murtha, 800 N.W.2d 179, 182-83 (Minn. App. 2011). 

The district court must first determine whether the party seeking to modify the custody arrangement has made a prima facie case by alleging facts that, if true, would provide sufficient grounds for modification. (Before scheduling an evidentiary hearing on a motion to modify custody, the district court must first determine whether the moving party’s allegations, accepting the allegations as true, state a prima facie case for modification. See Crowley v. Meyer, 897 N.W.2d 288,293-94 (Minn. 2017). Only if the allegations are sufficient, is a moving party entitled to an evidentiary hearing on the motion. Id. )

Specifically, the movant must make a prima facie showing that:

1. the circumstances of the child or the parties have changed;
2. modification would serve the child’s best interests; and

Also, the court must find one of the five specific additional grounds for modification as set out in Minn. Stat. §§ 518.18(d)(i)-(v) exists.

(i) the court finds that a change in the custody arrangement or primary residence is in the best interests of the child and the parties previously agreed, in a writing approved by a court, to apply the best interests standard in section 518.17 or 257.025, as applicable; and, with respect to agreements approved by a court on or after April 28, 2000, both parties were represented by counsel when the agreement was approved or the court found the parties were fully informed, the agreement was voluntary, and the parties were aware of its implications;

(ii) both parties agree to the modification;

(iii) the child has been integrated into the family of the petitioner with the consent of the other party;

(iv) the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child; or

(v) the court has denied a request of the primary custodial parent to move the residence of the child to another state, and the primary custodial parent has relocated to another state despite the court’s order.

The moving party also must show that the change in circumstances is the cause of the child’s emotional or physical endangerment. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).

If the Court hears the initial motion and DOES NOT find that a prima facie case has been made, then they will deny the motion without an evidentiary hearing.

If the Court hears the initial motion and DOES find that a prima facie case has been made, they should set the matter on for an evidentiary hearing.