Legal Question in Family Law in Minnesota

Re: child custody

I just received your very detailed and thoughtful question, and hope I can provide some guidance.

I presume from your message that your husband has joint physical custody of his son, in addition to joint legal custody. As you are probably already aware, this does not necessarily mean that the parents have "equal" time with the child, whether on a weekly, monthly, or yearly basis. Instead, joint physical custody merely means the parties have a structured parenting schedule -- which usually involves something "more equal" than would otherwise be ordered.

To modify the physical custody label, from joint to sole physical custody, will typically require a finding of endangerment. On the other hand, modification of the parenting schedule, without modifying the physical custody "label," does not require a finding of endangerment. The parenting schedule can be modified upon a finding that some new schedule will be in the "best interests" of the child -- which does not require the court to find that the current schedule, or that either party, endangers the child.

The fact that the court previously modified the parenting schedule upon considerion of the child's "best interests," does not mean that the physical custody label can now be modified by using the "best interests" standard. A finding of endangerment would still be required.

Although I gather you are rather pessimistic about the prospects of changing custody, considering your last experience in court, you should consult with an attorney about any changes that may have occurred since the last order was entered. However, you need to be aware that, absent significant facts, the court cannot consider a motion to modify custody for a period of two years after a previous motion was determined.

If the last motion was heard two years ago or more, or there is evidence that the current schedule is having a deleterious effect on the child, it may be worth examining the issue. If nothing else, the child's experience with his mother may provide grounds to modify the parenting schedule (without modifying custody) to essentially reverse, or substantially amend, the current schedule and give your husband more time and responsibility during the school year.

In a very general way, poor school performance can be an indicator of serious problems at home. Most judges and court service workers know this, although it depends on what sort of problems are being observed. It would be worthwhile having a conference with each of the child's teachers to get some insight on this issue.

You may certainly feel free to contact me if you have additional questions about this matter. My contact information is below.

Thank you for your question, and good luck.