Family Law Updates

In today’s society, people are able to relocate easily for many different reasons such as economic, educational, and career opportunities. Any residential move no matter how close (60 miles) or how far (1,000 miles) will impact parties’ custodial arrangements along with relationships with the child. After a separation or divorce, when a custodial parent decides to move, often a heart-wrenching decision has to be made about where the children will live and how and to what extent the other parent will maintain a relationship with them. Here is a hypothetical example of a situation where a parent decides to relocate to another state.

When Ava and Mark divorced six years ago, they thought that the agreements they made would serve them and their then four-year-old daughter Alexa, for many years to come. They would have their separate residences only a few miles apart, share custody and parenting time of Alexa equally, and be actively involved in the day to day activities of Alexa’s life.

Now fast-forward to today, five years later. The company that Mark has been working for, for years, has decided to move their headquarters California. The company wants Mark to continue working for them, but that means he must relocate to the West Coast. Ava now has a live-in boyfriend and is planning to get married, both have stable jobs within the state. Mark has decided that he does not want to miss out on the day to day activities of his daughter such as school events, helping with homework, and extra-curricular activities. He decides he wants to move his now nine-year-old daughter with him. Under Minnesota law, what would allow Mark to move his daughter with him to another state?

First, it is always important to look at your current custody agreement. In Minnesota, up until 2006, the case Auge v. Auge, 334 N.W.2d 393 (Minn. 1983) would have applied to the relocation of the child. In that case, it was stated that the custodial parent was presumptively entitled to permission to relocate the child out of state unless the opposing parent could show that the relocation would endanger the child’s physical or emotional health and was not in the best interest of the child established by Minn. Stat. §518.16(d) (1982).

However, the standard used for relocation changed in 2006. The Minnesota Legislature passed Minn. Stat. §518.175 subd. 3. Under Minnesota statue 518.175, a parent “with whom the child resides shall not move the residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree.” Like in determining child custody or modification of a custody order the court uses the best interest standard below:

When determining if a move is in a child’s best interest, the court must consider the following factors, but are not limited to these factors:

• 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;
• 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;
• 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;
• the child’s preference, taking into consideration the age and maturity of the child; (this factor is applicable depending on the child’s age)
• 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;
• 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;
• the reasons of each person for seeking or opposing the relocation; and
• 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.

The burden of proof in favor of the relocation is on the parent requesting to move the residence of the child to another place in state and out of state, except when the court has found that the person requesting the move has been a victim of domestic abuse by the other parent, the burden of proof shifts to the opposing parent. In the unpublished case, Ogilvie v. Ogilvie, the court denied a mother’s request to move from Minnesota to North Dakota, the Court of Appeals stated that the “legislature has weighed the interests at stake and has concluded that it is in the child’s best interests to impose a high burden upon a parent seeking to relocate out of state.”

If the Court grants the move in favor of Mark, Ava will no longer be able to participate in the day-to-day life of her child. On the other hand, if the Court denies Mark’s request to move his daughter, he will either have to choose to find another job within the state or move to California, away from his daughter. In that situation, Alexa will be separated from Mark with whom she may have the closest bond.

It is always important to consider the impact on the child. It is entirely possible that the benefits of increased pay or closer proximity to extended family members do not outweigh the benefits that your child may enjoy right now as a result of a consistent, ongoing, in-person relationship with the other parent. It is not acceptable for the purpose of the move to be to interfere with the parenting time of the other parent. In that situation, the court will not permit the move of the child.

Whether or not Mark is allowed to take Alexa with him, the parenting time plan will have to be altered substantially to accommodate the change in circumstances.

If you have Divorce and Family Law questions, please contact the Family Law experts at Minneapolis based Lake Harriet Law Office.