Legal Question in Family Law in Minnesota

Your brother may file for custody of his son and seek child support. Depending upon whether there is an existing child custody order, the legal standard and process for obtaining custody may be different.

In general, if there has been a prior formal custody determination, whereby the mother was awarded primary physical custody and the father was ordered to pay child support, your brother could file a motion to modify custody based upon "integration." The general process for filing a motion is to have a motion drafted asking for physical custody of the child and child support. The motion would need to be accompanied by an affidavit explaining the facts upon which your brother is seeking to modify custody. A parent can seek a modification of custody if the child has been "integrated" into his home, which in the context of your brother's situation would mean that the child has been living primarily with his father and that he has become "integrated" into his father's home with the consent of the mother.

If there has been no formal prior custody decision, your brother would likely need to initiate a custody action and seek primary custody and a modification of the existing child support order. Your brother may also want to file a motion to modify custody and seek child support on a temporary basis pending a final decision. If there is no prior custody order, the standard for obtaining child custody would be the best interests of the child.

If a court order has been entered with regard to custody in the past, your brother would be wise to file a Motion to modify custody. One of the basis stated in Minnesota Statutes for a change in custody is if the child has been integrated into the non-custodial parent's home with the other parent's consent. That certainly appears to be the case here.

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