What do I have to prove to change legal or physical custody?

Parents occasionally feel the judge should change and modify a prior legal or physical custody determination made in a prior divorce or custody case.  Their reasons often vary, but Minnesota law only allows these labels to be changed in five specific situations.  Minnesota Statute Section 518.18(d) lays out those five situations as follows:

In applying these standards the court shall retain the custody arrangement or the parenting plan provision specifying the child’s primary residence that was established by the prior order unless:

(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.

A change to the labels of legal or physical custody may require a Trial.  Parents pursuing this change should consult with an attorney to understand the paperwork needed to file with the court and the type of facts and documentation a judge must consider in this situation.

Contact experienced family law attorney Jessica L. Sterle at (218) 722-2655 to schedule a consultation to discuss custody and parenting time issues.

Jessica Sterle