A Motion to Modify Custody in Minnesota
During divorces, child custody is a major concern, and it needs to be handled carefully. Many different circumstances can complicate the matter. There are two types of custody, according to Minnesota law: legal custody and physical custody. Depending on many factors, parents may share custody as determined by the court. Within those types of custody, shared custody may also include joint legal custody or joint physical custody of the child. A motion to modify custody can be made if one or both parents is unhappy with the custody award.
Factors in Child Custody Modifications
The biggest – and most important – factor in a motion to modify custody agreements is the best interest of the child. If both parents agree to a modification, if there has been denial or interference with parental visitations, and/or the child is emotionally or physically endangered, the court will hear your petition for a child custody modification. Once there has been a modification in the child custody agreement, It cannot be modified for 2 years. If parents have legal joint custody, the process for modification of the child custody agreement is the same as modifying primary custody.
Contested Changes in Child Custody
In many cases, the parents do not agree to the change in the custody agreement. In these cases, there are certain circumstances in which the custody agreement can be changed. For example, the child has not been “consentingly” integrated into their non-custodial family. To change the custody award, it must be proved that the child is endangered in the custodial family.
Child Endangerment in Child Custody Cases
The circumstances in which a child may be removed from the custodial parent’s custody include:
- The child’s wishes to live with the non-custodial parent combined with some additional evidence to the endangerment
- Physical, sexual, or emotional abuse by the custodial parent
- Neglect or very poor discipline in the custodial home adversely affecting the child’s education or behavior
It is rare for the court to approve a modification solely on the child’s preference, but it does happen. In Minnesota, there is no certain age at which a child may request to change which parent they live with. But the older they are, the more their preference is taken into account. The child’s preference cannot be the sole reason they are removed from one of the parent’s homes. Proof of endangerment is still necessary.
Professionals Involved in a Motion to Modify Custody
It is within your best interest to have an independent third party (such as a mental health professional) involved. They can help you establish the preference of the child, as well as the reasons for that preference. Keep your attorney involved and apprised of the situation as the process and details vary from case to case. This will also allow you to memorialize any documents made as a court order by submitting them to the judge for approval from the court. Unofficial agreements are generally not enforceable.
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