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How do I go about custody?

Saint Cloud, MN |

My ex is not fit to raise my boys, plain and simple. She is mentally disturbed, probably doing drugs, and her live-in boyfriend is abusing her and the boys. I got a call from my oldest, 14 year old, that he is living with his mom's mother now. I have spoken with the mother of my kids and she has stated to me she wants my oldest to live with me. Am I able to get this in writing, that I will have sole custody of him and file it with the courts? Now, if I am able to and I get it, how can I go about fighting for my youngest? My kids will not live with somebody like her, who is putting them in harms way. My oldest has admitted it to me and their grandmother has admitted it to me. Now what are my rights as the father, being that the mother is not able to care for them? Can grandma fight me?

Attorney Answers 1


Custody Agreements that are not properly prepared and then memorialized as part of a court order are unenforceable. If the mother does not change her mine, the parties can execute a Stipulation and Order to Modify Custody that memorializes the change as well as any parenting schedules. It must then be properly presented to the Court for entry as a court order.

If there is no agreement, the standard used by a court to determine a modification of custody may depend on whether a prior custody order was entered. If no custody order has previously been entered, Courts make custody determinations based on what the court believes is in the child's best interests. In most cases, the court will award primary physical custody to one parent while the other will have a parenting schedule. The court will consider any relevant facts in making a custody determination including 13 specific factors outlined in Minnesota Statutes. Your case should be carefully framed to address each of the relevant statutory factors to be effective.

If a previous custody order was entered, the standard of review is elevated. Generally speaking, to meet the threshold for a change of custody, the child must have been integrated into your home as the custodial parent with the other parent's consent; OR you must demonstrate that the child is endangered physically, emotionally or developmentally in the current custodial situation AND that the benefit of a change in custody outweighs any harm caused by the change. Meeting such standards requires painstakingly documenting issues and crafting moving papers that address the correct standard.

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