Generally, to modify an existing parenting time schedule, the Court applies a "best interests of the child" analysis. Minnesota law provides, "If modification would serve the best interests of the child, the court shall modify the decision-making provisions of a parenting plan or an order granting or denying parenting time, if the modification would not change the child's primary residence."
However, for substantial modifications of parenting time, that are tantamount to a modification of child custody, the Court's apply the same "endangerment" standard as with modifications of child custody. Minnesota law provides:
The court may not restrict parenting time unless it finds that:
(1) parenting time is likely to endanger the child's physical or emotional health or impair the child's emotional development; or
(2) the parent has chronically and unreasonably failed to comply with court-ordered parenting time.
If a parent makes specific allegations that parenting time by the other parent places the parent or child in danger of harm, the court shall hold a hearing at the earliest possible time to determine the need to modify the order granting parenting time.
The Court may require that such parenting time be supervised and "may restrict a parent's parenting time if necessary to protect the other parent or child from harm." If there is an existing order for protection governing the parties, the court shall consider the use of an independent, neutral exchange location for parenting time.
Once child custody is established in Minnesota (both legal custody and physical custody), it can be difficult to modify it. The standard necessary to modify custody is something more than just “the best interests of the children,” which is the standard applied to initially establish child custody in Minnesota.
To modify either legal custody or physical custody, the Minnesota Courts apply an “endangerment standard.” Specifically, in order to modify child custody, it must be proved that the minor child or children are endangered either physically, emotionally or their emotional development is endangered while with the other parent.
The process for modifying child custody in Minnesota, requires the initiating parent to bring a post-decree motion (i.e. a motion after the Courts have already established child custody). At the motion hearing, the parent must establish by “prima facie” evidence, that the children are endangered as described above. If the Court agrees that you have met your burden of proof at the motion hearing, the Court will then schedule the modification of child custody matter on for an evidentiary hearing (which equivalent to a trial) to take testimony from the parents and any other witnesses and to receive exhibits to facilitate the Court's determination as to whether child custody should be modified.
Child custody in Minnesota can also be modified based on the theory of “integration.” What this means is that if the children move in with (change residence to) the other parent (the non-custodial parent) with the custodial parent's consent for a long enough period of time, then it may be determined that the children were “integrated” into that household. The consent of the custodial parent does not need to be actual expressed consent; the mere fact that the custodial parent did nothing after the child moved in with the other parent, may be sufficient “consent” under the theory of integration.
The parents are also allowed to modify child custody in Minnesota, based on a stipulated agreement. Therefore, if the parties agree to modify child custody, they would just need to incorporate that agreement into a stipulation and order, sign it and submit it the Court for a Judge to sign.
If you are wanting to modify an existing child custody order, but are uncertain as to whether there are sufficient grounds to accomplish such a modification, please contact the Prior Lake law firm, Blahnik Law Office, PLLC for a free initial consultation.