Legal Question in Family Law in Minnesota

Re: Moving child out of state

Thank you for your question concerning a prospective move out of state.

Until recently, the law provided that the custodial parent had the more or less automatic right to move children to another state, provided the move was not intended to interfere with the non-custodial parent's visitation (now called parenting time.) Approximately one year ago the law was changed to remove the presumption giving the custodial parent the right to leave. If a parent wants to move out of state, he or she must now obtain the consent of the other parent, or the permission of the court.

If the parents cannot agree, then the court must decide whether the move will be in the "best interests" of the child. To help the court determine what constitutes the child's best interests, the new law enumerates eight factors for the court to consider. You will find these factors (and the entire statute on parenting time) in Minnesota Statutes Section 518.175. You can find a link to the Minnesota Statutes at my web site. Click on my profile, below.

Although the new law may seem rather strict, and suggest that a move is quite difficult, in general most judges tend to be very reasonable in their evaluation of requests to leave the state. If your move is motivated by an important job opportunity, and your child is rather young, healthy and comfortable with the impending move, it is quite likely your motion for permission to leave the state will be granted. The issue typically becomes more complicated when dealing with older children who are heavily involved in school or community activities, who are old enough to voice opposition to the move, and who have a good relationship with the other parent. In your case, none of those factors would appear to be present. In fact, supervised visitation suggests the father has a history of domestic abuse, and this alone may exempt you from the general requirements of the statute, and give you a more or less "automatic" right to leave the state.

I would need to discuss the facts with you in more detail. The success of such motions often has less to do with the literal language of the law than it does with careful preparation of the case before submitting a request to the court -- if that is necessary.

Please give me a call for a free consultation about the matter. My contact information is below. I can be reached at the office on Monday afternoon, 952.285.2944.

Re: Moving child out of state

A new law regarding move-aways went into effect last year mmaking relocation with children more difficult. Not unlike the present law, a parent cannot relocate of the state with a minor child unless that parent has:

(1) Consent of the other parent, if that parent has been given parenting time by an order or decree; or

(2) An order of the court allowing the relocation.

As a result, it is incumbent upon you as the parent seeking to relocate out of state to file a Motion and acquire an order allowing that relocation before doing so. A failure to follow this procedure creates a serious risk that dissenting parent may seek an ex parte order changing custody immediately pending a hearing on the relocation issue. Granted, it appears that your ex would be in a poor position to do so, but any objection should be met with a strong argument given the long lasting nature of the result.

Under the new law, such move-away determinations are made based on what is in the best interests of the child. The factors the court must consider in determining the child's best interests include, but are not limited to:

(1) the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child's life;

(2) the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration special needs of the child;

(3) the feasibility of preserving the relationship between the nonrelocating person and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties;

(4) the child's preference, taking into consideration the age and maturity of the child;

(5) whether there is an established pattern of conduct of the person seeking the relocation either to promote or thwart the relationship of the child and the nonrelocating person;

(6)whether the relocation of the child will enhance the general quality of the life for both the custodial parent seeking the relocation and the child including, but not limited to, financial or emotional benefit or educational opportunity;

(7)the reasons of each person for seeking or opposing the relocation; and

(8)the effect on the safety and welfare of the child, or of the parent requesting to move the child's residence, of domestic abuse, as defined in section 518B.01.

It is critical to note that the new statute places the burden of proof on the parent requesting to move the residence of the child to another state, except that if the court finds that the person requesting permission to move has been a victim of domestic abuse by the other parent, the burden of proof is upon the parent opposing the move.

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