Legal Question in Family Law in Minnesota

Re: School tardiness

In order to change custody under Minnesota law, geneerally, the court must find that the child is endangered physically, emotionally or developmentally in the present situation and the benefit of the change in custody outweighs any harm caused by the change.

Certainly problems in schooling may rise to the level of developmental endangerment. Whether or not several tardies meet that criteria is doubtful and would depend on why the child is tary and whether or not it has affected the child's performance in school. In other words, input from the teachers would be quite helpful as would a review of any report cards. It should also be noted that at 17, the child's wishes would play a role in what occurs if a threshhold showing of endangerment is met.

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Re: School tardiness

Your question has a number of elements. Let's consider them separately.

First, Dad certainly does have legal rights, particularly if we presume he already has joint legal custody (which is typical in most custody awards). As a joint legal custodian, he has the right to obtain records directly from the school, meet with teachers, etc. He can therefore work with the school to formulate a plan for attendance, make up work, etc., should he choose to do so. Further, if the Mother is leaving the home early, Dad could take the responsibility for ensuring the child is up and at school if the Mother is unavailable -- although this presumes some degree of cooperation between the parents, or at least, benign neglect on the part of the mother.

Second, if working within the confines of the present custody arrangement is not feasible, Dad could certainly seek a modification of custody, or less than that, a modification of the parenting plan (ie visitation). Whether it would be reasonable to pursue this really depends on the willingness of the son to live with his father. If the son wishes to do so, (and assuming the son is 16 or 17 years old), it is possible the court would grant such a change.

One of the most common questions I have received over the years is whether a child can ever choose which parent he or she will live with. Sometimes the question is asked like this: Isn't it true that a child can choose where he/she will live when he/she is 12 (or 14 or 15, etc) years old? The short answer is no; the law does not provide that a child ever has the right to simply choose his or her place of residence. As a strictly practical matter, however, older children, particularly at 16 and beyond, can effectively determine where they will live because they will otherwise "vote with their feet." Although this is not provided for in the law, the court often bows to the necessities of the circumstances. Thus, whether the Dad's son wishes to make this change will be a substantial factor, as a strictly practical matter.

Third, and finally, yes you should consult an attorney about this matter. It is not so simple as merely filing a motion with the court and requesting a modification of custody or visitation. In addition to the procedural requirements for such a motion, there a variety of practical (frankly, strategic) decisions that should be made in consultation with an attorney.

You may feel free to contact me if you have further questions regarding this matter. My contact information appears below this message.

Thank you for your question.

John Jesperson