Can I change legal or physical custody?

I am often contacted by parents who in the past had a divorce or custody case where an agreement was reached concerning legal custody, physical custody and an ongoing parenting time schedule.  The judge signed off on the agreement and the parents and children got used to the new normal of how the family unit is going to function.  The reason I am contacted by parents years later is that they feel for a variety of reasons that the legal or physical custody agreement is no longer safe for the children.  Some reasons can include the other parent not participating in making medical or educational decisions, chemical dependency or constant disagreements where the parents can no longer communicate.

Minnesota Statute Section 518.18 states that legal or physical custody in the following five situations:

(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 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.

It is not easy to modify legal or physical custody.  These five situations require a high threshold of proof and justification for the change.  Feeling the other parent may be using drugs is not enough proof to modify legal or physical custody.  A parent may say he or she agrees to modify one or both types of custody, but if that parent refuses to put this agreement in writing a judge cannot sign off on the modification.

A parent wanting to modify legal or physical custody should give serious thought to meeting with an attorney to discuss why a modification is necessary and the facts that support it because this sort of court case is complicated and requires at least one court hearing.

Parents who have questions about changing legal and physical custody should contact experienced family law attorney Jessica L. Sterle at (218) 722-2655 to schedule a consultation.

Jessica Sterle

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