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MINNESOTA CUSTODY MODIFICATION

Minnesota Statute Chapter 518.18 provides as follows:

(a) Unless agreed to in writing by the parties, no motion to modify a custody order or parenting plan may be made earlier than one year after the date of the entry of a decree of dissolution or legal separation containing a provision dealing with custody, except in accordance with paragraph (c).

(b)  If a motion for modification has been heard, whether or not it was granted, unless agreed to in writing by the parties no subsequent motion may be filed within two years after disposition of the prior motion on its merits, except in accordance with paragraph (c).

(c)       The time limitations prescribed in paragraphs (a) and (b) shall not prohibit a motion to modify a custody order or parenting plan if the court finds that there is persistent and willful denial or interference with parenting time, or has reason to believe that the child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development.

(d) If the court has jurisdiction to determine child custody matters, the court shall not modify a prior custody order or a parenting plan provision which specifies the child’s primary residence unless it finds, upon the basis of facts, including unwarranted denial of, or interference with, a duly established parenting time schedule, that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child.     In applying these standards the court shall retain the custody arrangement or the parenting plan provision specifying the child’s primary residence that was established by the prior order unless:

(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 in 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; or

(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.

Minnesota Statute Chapter 518.18  2013Sefkow v. Sefkow, 427 N.W.2d 203 (Minn. 1988).  Even if the best interests standards may favor a change of physical custody, if there is no showing of endangerment to a child’s physical or emotional development, then a change in the present court ordered environment of the child is not appropriate.  Niemi v. Schachtschneider, 435 N.W.2d 117 (Minn. Ct. App. 1989). The moving party has the burden to demonstrate a prima facia case of endangerment connected with the child’s present custodial placement.  Ross v. Ross, 477 N.W.2d 753, 755 (Minn. Ct. App. 1991).

After consideration the consideration of the affidavits submitted in support of a motion for modification of a custody order, the trial court must review the documents and schedule an evidentiary hearing only if that review indicates a likelihood that the movant might establish the requisite change in circumstances on which a modififcation must be based.  If the affidavits do not set forth any change in circumstances sufficient to justify a modification, the trial court has the discretion to deny a motion on the affidavits and refuse to schedule an evidentiary hearing.  Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471 (Minn. 1981).  The moving party must establish that a significant change of circumstances has occurred since the original custody order and the change endangers the child’s physical or emotional health or development.   Id at 472.

Informal agreements between parties modifying custody and visitation are invalid unless subsequent judicial approval is obtained.  Tell v. Tell, 359 N.W.2d 298 (Minn. Ct. App. 1984).

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