Modification of Physical Custody
- by Eric C. Nelson, Attorney

A Court may not change physical custody from one parent to the other unless the change is in the best interests of the child. [1]

Furthermore, even if the change of custody is in the best interests of the child, the Court cannot order a change of custody unless:
  1. both parties agree to the change; OR
  2. the child has been integrated into the family of the non-custodial parent with the consent of the custodial parent; OR
  3. the child’s present environment with the custodial parent endangers the child’s physical or emotional health or impairs the child’s emotional development, and the benefits of a change of custody outweigh the harm. [2]
Where the parties do not agree to a change of custody, and the child has not been consentingly integrated into the family of the non-custodial parent, a change of custody can only be accomplished by proving that the child is “endangered” in the current custodial environment. In practice, this means that there must be strong evidence in favor of the change of custody. Examples of such evidence are:
  • a child’s strong desire to live with the non-custodial parent combined with at least some additional evidence
  • physical, sexual or emotional abuse by the custodial parent
  • neglect or very poor discipline in the custodial home that adversely affects a child’s grades or behavior, etc.
In practice, it would be the rare case where custody is modified contrary to the child’s preference, at least for older children. In Minnesota, there is no particular age at which a child gets to decide which parent he wants to live with. Generally, the older the child, the more weight the child’s preference carries, whether in the initial custody determination or in the context of a motion to modify custody. [3] Still, the child’s preference alone is an insufficient basis for modification of custody. [4] There must be a showing of endangerment, at least on an emotional level, in order to modify custody. [5] The child’s preference is an important factor and often a sine qua non of a showing of endangerment. So it is very important with a teenage child to be sure of the child’s preference before bothering with a modification motion. In at least two cases I can recall off the top of my head, wherein I represented the parent seeking the modification of custody, the cases collapsed after the teenagers changed their minds.

As a tactical matter, it is often advisable to get the input of an independent third party mental health professional to be able to establish the preference of the child, and the reasons for that preference, etc. How to go about doing this is something that should be discussed with your attorney, because it will vary from case to case.

Footnotes:
  1. Minnesota Statute section 518.18.
  2. Id.
  3. See Ross v. Ross, 477 N.W.2d 753, 756 (Minn.Ct.App. 1991) [citing State ex rel. Feeley v. Williams, 222 N.W.2d 927, 928 (Minn. 1929) (preference of 12½-year-old given great weight in maintaining her custody with aunt and uncle)].
  4. Geibe v. Geibe, 571 N.W.2d 774 (Minn.Ct.App. 1997) (motion for modification of custody denied without a hearing despite 17-year-old’s preference to change custody).
  5. Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn.Ct.App. 1991) (reversing trial court’s denial of evidentiary hearing in case involving emotional abuse) (citation omitted).