Sometimes parents wish to change or modify custody orders. Unfortunately this is not an easy task. It is important to understand the impact of an initial order, the limits on timing, and the additional requirements for modifications.
Initial Custody Order
If parents have not reached their own agreement on custody and parenting time, the court needs to make the decision. When making an initial child custody decision, the courts will use a variety of factors known as ‘the best interests of the child‘ to weigh the options and make a decision. Once an initial custody order is made, it will remain in place unless modified by a future order.
After the initial custody order is entered a motion to modify custody can not be made for a period of one year. There are three exceptions to this: 1) there was an agreement in writing between the parties otherwise allowing the motion; 2) the court finds there has been persistent and willful denial of or interference with parenting time; or 3) the court finds the child’s current environment may endanger the child’s physical or emotional health. After the court hears a motion to modify custody (whether or not the request is granted), another motion to change custody can not be made for a period of two years, unless one of those three exceptions exist.
Additional Requirements for Modifying Custody
For a court to modify or change a custody order, the parent seeking the change needs to first prove to the court that there is a valid reason to modify. These reasons include:
- De Novo Review. The prior order contains an agreement between the parties to consider a future change of custody looking only at the best interest factors and no additional reason is needed.
- Agreement. Both parties agree to a change in custody.
- Integration. The child “has been integrated” into the parent’s house with the consent of the other parent. This means that even though the custody order says Parent A has custody, the child has been living with Parent B long enough to fully become a part of Parent B’s house and Parent A has allowed this arrangement.
- Endangerment. The current environment endangers the child’s physical or emotional health.
- Move Out of State. The custodial parent’s request to move the child out of the state of Minnesota has been denied and the custodial parent relocates out of state despite the court order.
Once the court has found one of those reasons to change custody exists, the court will then consider the best interest factors in determining whether there should be a change of the custody order.
Initial Custody v. Change of Custody
While an initial custody determination is a one-step process (considering the best interests) a change of custody is a two-step process (first establishing the reason for a modification and next considering the best interest factors). Because of this, a change of custody action can easily be more complex, more time consuming, and more expensive than the initial custody action. Like many things in family law, it is important to take the time to get it right the first time.