In Minnesota, custody modifications are governed by Minnesota Statute section 518.18 (d). The threshold question in a motion to modify custody is whether a significant change in circumstances has occurred since the previous custody order was issued making a modification necessary to serve the child’s best interests. The change must be real, not a continuance of ongoing problems. A previous custody order is an order that either sets or modifies the custody labels, not an order that deals only with the parenting time schedule.

On August 18, 2014 the Court of Appeals issued Spanier v. Spanier which addressed the threshold question in every motion to modify custody – has there been a change in circumstances?

When the parties in Spanier divorced in 2008, husband was awarded sole physical custody of the children because wife was enlisted full time in the Navy and had signed a contract to go to California. In 2010 wife returned to Minnesota and the parties agreed to share parenting time on an equal basis as long as wife was in Minnesota. They did not agree to change the physical custody label. A court order was filed by the parties in 2010 memorializing their equal parenting time agreement.  Then, in 2013 wife received orders to deploy to Virginia.  Wife wanted to move the children to Virginia and filed a motion to modify custody.

Wife alleged that her pending move to Virginia was a change in circumstances. The trial court disagreed, finding that wife was on full-time duty with the Navy at the time of the divorce and therefore had knowledge that she could be deployed to various locations under the terms of that employment.  Wife appealed, arguing that her move to Virginia was a change in circumstances from the 2010 parenting time order. The Court of Appeals was asked to decide whether the trial court should have used the 2008 divorce decree or the 2010 parenting time order as the “prior order” to decide if a change in circumstances occurred.  

The Court of Appeals found that a “prior order” is a “either an original order entering custody or a subsequent order modifying custody, and it does not include orders that modify parenting time only and that do not modify custody.”  Therefore, the trial court was correct in evaluating the facts that had arisen since the 2008 divorce order, rather than the 2010 parenting time order to decide if a change in circumstances occurred.

What does this mean for you?  The initial setting of custody is very important and you should hire a competent and experienced attorney to represent you. If you have concerns about the other parent, those concerns needs to be addressed during the initial custody determination. You cannot bring a motion to change custody later based on those continued concerns because it will not be considered a change in circumstances to support a custody modification.