Remember when our parents warned us not to make goofy faces lest they get stuck that way? Sadly, this kind of, sort of, happened recently when a parent failed to do anything about a court order that gave temporary custody of the children to the other parent….it kind of got stuck that way.

The Minnesota Court of Appeals recently determined that an August 2013 temporary (meaning, not permanent) order, giving sole custody of the children to Dad; became a permanent order based on Mom’s failure to do anything about that temporary order until almost two (2) years went by.

Two (2) years into the temporary order, Mom challenged the court’s child custody award (ostensibly after getting some legal advice). Instead of getting the right to have a child custody decision made on the merits of what is best for the children, she got some “tough love” from the court – namely, both the lower court and the court of appeals, dismissed Mom’s challenge to the temporary order as untimely. Mom simply waited too long to do anything about it, and the courts said that the children couldn’t wait that long for a parent to fix things.

Referring to the rules of Civil Procedure and Civil Appellate Procedure, the court of appeals stated that the mother cited “no legal authority for challenging the [temporary] order at this late date, well after the time to appeal has expired.” See Minn. R. Civ. App. P. 104.01 (providing sixty days to appeal from an appealable order); Minn. R. Civ. App. P. 103.03(h) (providing that an order modifying custody is appealable).

So the temporary order stuck – even though no one disputed that the temporary order was not ideal, nor was it created in the manner that the law requires (the law requires that determining child custody requires a hearing where parents can present evidence about what is best for the children). The temporary order, in spite of its deficiencies, was not challenged and therefore became status quo.

If you think that determining child custody by acquiescence is a bad idea, you’re not alone.

The court of appeals echoed this sentiment and found it “troubling” that custody was modified in this case without an evidentiary hearing (the law requires an “evidentiary hearing” or trial to change a court’s child custody determination), but since Mom did nothing for nearly two (2) years, and according to the court “justice requires stability and finality in custody determinations. Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993) (“Minnesota law rests on a presumption that stability of custody is in a child’s best interests.”), the temporary order stuck.

The lesson here is to take action and seek legal advice if you are confronted with a child custody situation that you know is not right for your children. Waiting too long to do anything risks an untenable situation getting “stuck that way”.

Meet Tim Simonson

Tim has been practicing for more than twenty (20) years now, He's handled divorce, child support, child custody, third party and grandparent rights, domestic abuse, parenting time, and many other areas of family law. He always enjoys the chance to meet people and see whether he can help find solutions to their legal problems.

Contact Beyer & Simonson

If you are facing divorce and any of the divorce-related issues such as spousal maintenance, child support, child custody, property division, or domestic abuse matters, you need our experienced Minneapolis divorce attorneys to help you. Contact Beyer & Simonson in Edina, Minnesota today at (952) 303-6007.

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