Modification of Physical Custody in Minnesota

(by Eric C. Nelson, Esq.)

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:

a) both parties agree to the change; OR

b) the child has been integrated into the family of the non-custodial parent with the consent of the custodial parent; OR

c) 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.

*This information is general in nature. It is not to be taken as specific advice for your particular case. This information applies only to Minnesota law, and not to the law of any other state or country.

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).