When custody determinations are initially made, they generally are determined based on what is in the children’s best interests. That is the standard that is followed in almost every state. Additionally, many states specifically set out in their statutes specific factors that must be considered when changing custody.
Even after custody has been determined, changing circumstances often result in changing schedules and even changes to the custody arrangement. As a result, courts have the power to modify child custody arrangements and child support to meet the changing needs of the parties and the children.
** CUSTODY CHANGES BY AGREEMENT**
Often custody changes can be accomplished without appearing in Court so long as the parents agree to the change. However, it is very important to memorialize any agreements made as a court order by submitting a stipulation and order to the court asking for the Judge’s approval of the arrangement. Agreements that are not memorialized as part of a Court order are generally unenforceable.
When the parents are unable to agree on custody changes, the issue can be submitted to the Court. Most states, however, first require the parents to try to mediate their dispute in order to settle their issue out of court before proceeding to a contested hearing on the issue.
** CONTESTED CUSTODY CHANGES **
To seek a change of custody, a Motion must be filed along with an affidavit (a sworn statement) supporting that position and any supporting documentation or legal memoranda (researched legal arguments).
If the matter does proceed to court, it is important to understand the standard that the Court will apply when deciding whether to modify the existing custody arrangement. Different standards apply in different states. In Minnesota, the parties may agree at the imitial determination of custody that a best interests of standard of the child continue to apply moving forward to any motions to subsequently modify custody. Absent sucgh an agreement, under Minnesota Statutes Sec. 518.18, there is an elevated standard that generally requires showing that hte child has been integrated into one parent's home with the otehr parent's consent or that the child is endangered.
In either case, there are two significant elements that are considered by a court:
A parent seeking to change custody through the court usually must show that the conditions have changed substantially since the last custody order or that there has been an unwarranted denial of duly established parenting time by one parent.
Additionally, it is generally presumed that the court should retain the current custody arrangement unless the party seeking the change custody demonstrates that it has met the statutory criteria by a preponderance of the evidence.
When an endangerment of the child standard is applied the burden is significant.
** ENDANGERMENT STANDARD**
Once custody has been determined, it is very difficult to change. The standard that the court applies is no longer what is in the best interests of the child. Instead, there is an elevated endangerment standard.
To meet this standard, the party seeking the change must file a motion supported by evidence that the children are endangered physically, psychologically or developmentally in their current situation. Courts must also find that the benefit of the change outweighs any harm that would occur by the change. Obviously, this burden is very high and requires that the moving party have a significant amount of new evidence since the last custody order was entered to support their case. Any incidents or information predating the previous custody order is largely irrelevant unless it can be tied into a pattern related to more recent conduct.
Some evidence supporting endangerment claims may include:
Police Reports. Police reports showing numerous disturbances at the custodial parents home can be a sign of instability and may support a change of custody. This is particularly true if the children were present at the time of the disturbances
Criminal Records. Criminal offenses that endanger the children or that leave them without supervision can also be used as powerful evidence in any motion to change custody.
Child Protection Reports. Reports of abuse or neglect relates specifically to the care of the children and are often the strongest possible evidence for a change of custody where the negligence or abuse has been substantiated.
School Records. School records showing significant absenteeism, behavior problems or falling grades cans support claims of instability ion the child’s custodial home.
Counseling Records. Counseling or psychological records may reveal problems in the home that lead to symptoms of poor socialization, development or depression issues.
Medical Records. Medical records related to injuries may point to a general lack of care and attention by a custodial parent.
** CAN THE CHILD DECIDE?**
One of the most common questions asked is when a child can decide where they will live. In almost all states, the child’s wishes are only one factor out of many and are never dispositive with regard to the issue. However, as each child matures, their wishes will carry greater weight in contested custody proceedings. In the State of Minnesota, there is case law which indicates that endangerment may be presumed when a child in their later teen s expresses a strong preference regarding custody.
** CUSTODY EVALUATIONS**
If a Court hears a motion for a change of custody and believes as a result that there may be a basis for the change, it may require a custody evaluation performed. How each parent presents their issues in the custody evaluation can be a critical part of the cases success or failure.