Court Holds that a Mother’s Educational Neglect Support a Change in Custody

In Higgins v. Higgins, A12-2127 (Minn. Ct. App. Jan. 27, 2014), the Minnesota Court of Appeals affirmed the district court’s decision granting the father primary physical custody of his young daughter in large part because of the child’s excessive tardiness and absenteeism while in her mother’s custody, with the parties sharing joint legal custoday.

The appellate court held that the district court had not erred in finding that there was a significant change in circumstances since the mother was given custody, as required by the statute for modification of child custody, Minnesota Statute 518.18. The appellate court found that the there was evidence that the child had significant problems in attendance at school when in her mother’s custody and that her mother had difficulty in complying with the previous agreement on parenting time. The district court had found that the mother had educationally neglected her daughter, by allowing her to miss school and come to school late on numerous occasions.

The district court also considered the thirteen statutory factors for consideration in determining the best interest of the child for the purpose of child custody. Minnesota Statute 518.17. It found that six factors favored neither parent; those factors were the parents’ wishes regarding custody; the reasonable preference of the child if the child is old enough to express a preference; the closeness of each parent’s relationship with the child; the ability and willingness of the parents to give the child love, affection, and guidance and to raise the child in the child’s culture or religion; the child’s cultural background; and the effect on the child of domestic abuse. It also found that the mother’s background as the child’s primary caretaker favored her, but found that six other factors favored the father, including the child’s relationship with a sibling, the child’s adjustment to home, school, and community, the length the child has lived in a stable, satisfactory environment; the permanence of the family unit; and the mental and physical health of all individuals involved.

The court noted that the father was in a long-term (five year) relationship with a woman with whom he had a three year old child. The court found the fact this young child had a good attendance record at pre-school was a positive factor in favor of the father. The court also noted that the mother had physical and psychological ailments that raised questions about the stability of the child’s home environment. The court also noted that the mother had difficulty in providing the father with parenting time, but the father did not indicate that he would have any problems with cooperating with the mother’s visitation. Further, the appellate court held that the child would have a better opportunity for success in both academics and development if the father had custody.

The mother had argued that the father’s criminal history was a significant factor supporting her custody of the child. However, the court noted that the criminal history involved a sexual offense that occurred when he was thirteen, and that the district court had considered that evidence. Further, the guardian ad litem had recommended the father have physical custody.

Anyone who is considering moving for changing an order regarding child custody should consult with an experienced family law attorney.