Parenting Time Modification; What is the Standard?

November 25, 2019

Minnesota has two statutes that seemingly set the standard for courts to decide whether to modify an order for parenting time. Minnesota Statute Section 518.175 governs parenting time, and subdivision 5(b) provides that the court shall modify parenting time if the modification would not change the child’s primary residence and if the modification would serve the best interests of the child. The Minnesota Supreme Court dubbed this the “best interest” standard.

Minnesota Statute Section 518.18 governs modifications of a prior custody order, and provides that the petitioning party must make a showing of the following: (1) the circumstances of the children or custodian have changed; (2) modification would serve the children’s best interests; (3) the children’s present environment endangers their physical health, emotional health, or emotional development; and (4) the benefits of the change outweigh its detriments with respect to the children. The Minnesota Supreme Court dubbed this the “endangerment” standard.

Proving that a child’s environment is endangering their health is a tall order, so applying the appropriate standard is crucial. If the proposed parenting time modification would be a substantial change, the court may find it to be a “de facto” custody modification even if the petitioning party is not technically requesting a modification to physical or legal custody. For example, if Mother has sole physical custody and Father is asking for 90% of the parenting time, a court would likely find Father’s request to be a “de facto” custody modification and thus apply the endangerment standard.

Conversely, if two parents have joint physical custody and one parent wants to increase their parenting time from 45% to 52%, a court is less likely to apply the endangerment standard and instead apply the best interest factors. Whether a proposed parenting time modification is substantial depends on the “totality of the circumstances.” The Minnesota Supreme Court highlighted factors such as the child’s age, school schedule, and the distance between the two parties’ homes as contributing factors to whether the proposed change is substantial.

If you are considering bringing a motion to modify parenting time, it is important to discuss with a knowledgeable attorney how the court might perceive the significance of the modification, and whether the court will likely apply the best interest or endangerment standard.

This information is general in nature and should not be construed as tax or legal advice.