Can I Move Out Of The State With My Child?
As a separated or divorced parent, you may be wondering, “Can I Move Out of the State with my Child?” Maybe you received a great job offer, but it’s in another state. Maybe (for emotional, social and/or financial reasons) you want to move closer to family and friends. Regardless of the reason, typically, a parent can relocate to another state. However, this article looks at what the law says about taking your child(ren) with you.
In Minnesota, these types of family law situations may be referred to as child removal and/or custody relocation cases. Whether you can move out of the state with your child(ren) will depend on your current situation and your custody and parenting time order.
Child(ren) Relocation and Parenting Time
For simplicity’s sake, child relocation cases come primarily in one of the two situations:
A. One Parent has all the Parenting Time, or
B. Both Parents have Parenting Time.
SITUATION 1: One Parent Has All The Parenting Time
In this situation, one parent has sole physical and legal custody of the child, in addition to, 100% of the parenting time with the child, and is the parent who is wishing to relocate with the child. In this case, the parent who has all of the custody and parenting time rights can leave the state with the child without any issue or needing to get anyone’s permission. Any parent who has all the parenting time and custody rights has this option. In Minnesota, there is no requirement for a legal proceeding or even to tell the other parent, if this is the case.
In Minnesota, custody is broken down into legal custody and physical custody.
Read Child Custody in Minnesota if you’re unsure if you have sole physical and legal custody of your child(ren).
In addition, it can be confusing because custody and parenting time are two separate things in Minnesota.
Read Parenting Time in Minnesota to learn about the difference between between custody and parenting time in Minnesota.
SITUATION 2: Both Parents Have Parenting Time
In this situation, one parent wants to move to another state with the child, but s/he shares shares parenting time with the other parent. Regardless of whether you’re the parent who wants to move with the child or you’re the parent who doesn’t want the child to move, Minnesota takes parental kidnapping and custodial interference seriously so it’s important that you know the law.
Here are a few things to know when both parents have parenting time:
- In order to move with the child, a parent must get an order from the court allowing it or written permission from the other parent.
- If the purpose of the move with the child is to interfere with parenting time already ordered to the other parent, the court will not allow relocation with the child.
- If one parent objects to the move, the court will determine whether the relocation should be allowed based on what’s best for the child.
- When determining whether the parent can move out-of-state with the child, the court will consider the following:
* As you can see, some of the factors involve stability and continuity, which will tend to favor keeping the child where s/he currently lives.
- The “burden of proof” is on the parent who is trying to move the child out of Minnesota. Meaning, the parent who wants to move to another state with the child has sole responsibility proving to the court that it’s in the child’s best interests to move.
* The only time the burden of proof would not fall on the parent who is trying to move with the child, is if the court finds that the parent who is requesting the move is a victim of domestic abuse from the opposing parent. In this case, the burden of proof would fall on the parent who opposes the move, and s/he would have sole responsibility proving to the court that it’s in the child’s best interests to stay.
Child removal situations are governed by Minnesota Statutes, Section 518.175, Subdivision 3. In addition to the language in the statute, the prevailing attitude in the courts is that children do best when they have ready and consistent access to both parents. This attitude is based on legal and social sciences research.
Thus, in the current legal climate, it’s very difficult for a parent to move to another state with the child(ren) if the other parent has parenting time and is against the move.
In essence, the parent who is requesting to relocate needs to overcome the presumptions in favor of both parents having ready access to the child and demonstrate that it’s in the best interests of the child for one parent to leave the state, move away from the other parent, against the other parent’s wishes, with the child.
Child relocation cases are complicated and taken seriously, because issues such as: parental rights, parental kidnapping and custodial interference can quickly come into play. To illustrate, in Minnesota, if you conceal, take, obtain, retain, or fail to return a child from or to the child’s parent (or person with custodial or visitation rights), you can be charged with a felony. (Minnesota Statues, Section 609.26, Subdivision 1). This is why it’s important if you find yourself in a relocation case, that you retain a family law attorney and obtain legal guidance that is specific to your situation and state laws.
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