When a couple with children break up, they often find it’s not so easy—literally—to move on with their lives. Parents can move away (“relocate”) to pursue new romances and career opportunities, but they can’t necessarily take their children with them unless they first comply with important legal requirements.
In Minnesota, as long as there isn’t a history of domestic violence, it’s presumed that children benefit most from having both parents involved in their lives. To that end, when a couple divorces or breaks up, the family court will issue a “parenting plan” that establishes custody and sets up visitation. The parenting plan generally can’t be changed unless there’s a substantial change in the circumstances of the child or the parent. If a parent wants to move and take the child along, that constitutes a change in circumstances and a court has to decide whether to allow the move.
When a parent wants to relocate and take the children along, that parent has to get the permission of the non-relocating parent first. Minnesota doesn’t have hard and fast rules about how far in advance the relocating parent should notify the non-relocating parent, but as a rule of thumb, it’s wise to give the non-relocating parent a heads-up as far ahead as possible. It’s prudent to give the non-relocating parent a written notice, and to include information about where the relocating parent will be moving and the reasons for the move. If the relocating parent is afraid that the non-relocating parent will become violent or threatened by the notice, the relocating parent should contact the local district court for assistance. A judge can make sure the non-relocating parent is notified while also protecting the relocating parent and child from potential danger.
Minnesota law provides that the parent who has primary physical custody of a child can move away unless the non-relocating parent objects to the move. The non-relocating parent does this by filing a motion in the district court. It’s important to know that you need to formally object to a proposed move if you don’t want your kids to relocate.
If both parents agree to the move, they should write down their agreement and file it with the court. But if the non-relocating parent objects to a move and files a motion, the judge has to decide whether the move would endanger the child’s emotional or physical health. If it would, then the court will schedule an evidentiary hearing, which is a kind of trial. At the trial, the parent who wants to move has the burden to prove to the judge that the move is in the best interests of the child. However, if there’s a history of domestic violence, the burden of proof shifts to the non-relocating parent to prove that the move isn’t in the child’s best interests.
Don’t move away with your kids when your ex disagrees and the court hasn’t ruled yet. Consult a lawyer first. If you leave before getting the court’s permission, the judge can order you to return the child, give the other parent “compensatory” (make-up) visitation, and possibly punish you in other ways too.
At the evidentiary hearing, the judge will listen to testimony and consider evidence about the lives of the parents and the child. Afterward, the court will apply the law to the case to reach a decision about whether to allow the move. The primary consideration is always whether the move serves the child’s best interests. To decide whether a move is actually in the child’s best interests, the court must consider all of the following factors:
Minnesota’s child custody law explicitly forbids courts from discriminating on the basis of the child’s or the parent’s gender, and the court won’t allow a move if the purpose behind it is to interfere with the non-relocating parent’s visitation and custody rights.
If the weight of the evidence shows that moving is in a child’s best interests, the judge will issue an order allowing the move and adjusting the custody and visitation schedule accordingly. The court will also apportion (divide up) any costs associated with visitation post-relocation. But if the evidence doesn’t establish that a move is in the child’s best interests, the judge will issue an order denying the request to relocate the children.
In a key decision, the Minnesota Supreme Court took up the case of a divorced couple with two young children. During the divorce, the parents agreed to make important decisions about the children together, and also agreed that the children would mainly live with the mother subject to the father being awarded a generous amount of visitation, which he regularly exercised. As part of the final divorce order, the judge ordered that neither parent could move the child out of Minnesota without the other parent’s consent or a court order.
Four years later, the mother notified the father that she intended to move with the children to Arizona, where she could enhance her career and improve the family’s lifestyle. She proposed to adjust the father’s visitation so he would have time with the kids during the summer months. The father opposed the move, claiming, without adequate proof, that the mother had substance abuse problems. He also argued that the move would cause the children to feel anxious and unhappy. The Minnesota Supreme Court ruled that the move had to be allowed because the mother had proved that the move was in the children’s best interests, and the father hadn’t been able to establish that it would endanger the children’s physical or emotional health.
If you or your ex have custody or visitation rights and want to relocate with your children, you should contact an experienced Minnesota family law attorney to assess your situation, advise you about your rights and obligations, and represent you in court.