In Busch v. Christian, A14-0687 (Minn. Ct. App. Mar. 9, 2015), the Minnesota Court of Appeal upheld a decision of the trial court modifying a custody order to award sole legal and physical custody to a father because the mother had been alienating the child from the father.   In this case, the parents had never been married, but the father’s paternity was recognized soon after the child’s birth.  The initial child custody order had awarded both parties joint legal custody, with sole custody to the mother and parenting time to the father, increasing as the child got older.

Relying on Minnesota Statute section 518.18, the court found that four elements had to be established in order to modify a prior custody order:  (1) a change in the circumstances of the child or custodian; (2) modification would serve the child’s best interest; (3) the child’s physical or emotional health or emotional development is endangered by the current environment; and (4) the harm to the child likely to be caused by changing the environment is outweighed by the advantages of the change.   The court found that all four elements were met. 

The court found that there had been a sufficient change in the circumstances of the child or custodian to support modification of custody because the mother had constantly negatively referred to the father and refused as many as 29 days of parenting time since the last order and her actions caused the father’s relationship with his daughter to deteriorate.

The court found that modification was in the child’s best interests and provided a detailed analysis of the statutory factors.  The mother challenged the court’s conclusion on four of the factors.  First, the court found that the intimacy of the relationship of the parent and child favored the father, as he genuinely loved the child while the mother tried to alienate the child from the father.  The court was convinced that the mother had an unhealthy relationship with the child, noting that after the father had physical custody, the mother went to the child’s school every day to have lunch with her.  It was noted that the daughter was afraid to tell her mom that she loved her dad because of her mother’s constant negative state.

Second, the court found that the child’s adjustment to home, school, and community favored the father.  The court found that the child was better adjusted at school and with her peers after her father had custody.  It was again noted that the mother’s daily lunches with the child at school interfered with the child’s independence and were inappropriate.

Third, the court found that the continuity of a stable, satisfactory environment favored the father even though the child had lived for a longer period of time with the mother.  There was concerned that, since the change in custody to the father, the child was no longer sleeping in her own room but was sleeping with her mother when she had parenting time with her mother.

Fourth, the court found that the physical and mental health of the parents and child favored the father even though he had a recent DUI conviction because of the court’s concern that the mother because of the mother’s “persistent, uninterrupted and outrageous” interference with the father’s visitation.

It was also noted that the child had adjusted well to her father’s custody. And that she had improved in some significant aspects, including her hygiene.  Although she continued to have difficulties in school, the father had hired a tutor for her.

If you are involved in a custody dispute, you should consider retaining an experienced family law attorney who can assist you in developing a record that will support your claim for custody in light of the statutory factors.