Legal Question in Family Law in Minnesota

Re: leaving state with children

Thank you for your question about removing children from Minnesota.

This is a difficult question, and one that I am asked frequently while my client is in the midst of a divorce. If you make your intentions known now, before the divorce, it is quite possible your decision to move (particularly if it is beyond a border state) could affect the determination of custody and parenting time. The court would need to determine whether the move is in the best interests of the children --that is, how it would affect their relationship with family and friends, their education, their emotional stability, etc. Their age and the strenght of their attachment to their father and community would be assessed, as would the propriety of your decision to move. All of this could affect custody.

If you wait until the divorce is final, and then decide to move, you are subject to Minnesota Statutes section 518.175, subdivision 3. You can find this statute by following the link to the Minnesota Legislature (on the links page) at my website. Simply enter "518.175" in the "retrieve a section" field.

What you need to know is that you cannot later remove the children from Minnesota (for the purpose of changing their residence) without the consent of your ex-husband or an order from the court, regardless of whether you have sole or joint physical custody. Further, you will have the burden of showing that the move is in the best interests of the children (unless you have been the victim of domestic abuse).

As a practical matter, if you decide to move after the divorce, whether the court will approve the move depends on whether you have a job and other living arrangements in the other state, how it will affect your children, etc. The court will also have to revise your parenting schedule, and may give the father extended time during the summer (perhaps most of it) and extended holidays. The court can also deal with transportation costs and may allocate some of those to you, since you are the one choosing to move. And finally, the court will likely be much more reluctant to approve a move if if comes immediately after a divorce, particularly if will be a substantial distance from the other party.

Given the complexity of this issue, it is one that I always prefer to deal with during the divorce (whether or not we decide to advise the other party of an anticipated move.) Frankly, I need to know my client's intentions during the case so we can lay some foundation for a later move.

This is a potentially complicated issue that you really should discuss with the lawyer representing you in your current proceeding. However, you may certainly feel free to contact me if you have further question. My contact information is below.

Re: leaving state with children

You would need your husband's permission or the permission of the court to relocate with the children out of state. Under the new law that passed last year, the court will determine whether you should be able to take the children bases on the best interests of the children. Please contact our office if you would like to sit down and further discuss your options.