A move out of the state with a child can be tempting and may make a lot of sense. Maybe you received a great job offer? Maybe you want to move closer to family and friends? Or a new supportive partner?
Regardless of the reason, most separated or divorced parents in Minnesota can usually move to another state. However, it may be different if he or she wants to take the children as well.
These are child removal and/or custody relocation cases. Whether you can move out of the state with your child(ren) depends on your current situation. In particular, the custody and parenting time situation matters a lot.
Child relocation cases arise in one of the two situations:
- One Parent has all the Parenting Time, or
- Both Parents have Parenting Time.
moving out of state with a child with Sole Custody
SITUATION 1: One Parent has Sole Custody and all the Parenting Time
In this situation, one parent has 100% of the parenting time with the child. In this case, the sole custodian may leave the state with the child. The other parent’s permission isn’t needed.
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.
However, there is one caveat. If the custodial parent plans to move and the other parent becomes aware of this, he or she may start a custody proceeding. He or she could then try to establish parenting time rights and block the move.
Moving out of state with a child: Shared Parenting Time
SITUATION 2: Both Parents Have Parenting Time
In this situation, one parent wants to move to another state with the child, but he or she shares shares parenting time with the other parent.
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. (Minnesota Statutes, Section 518.175, Subdivision 3).
- When one parent is against the move, the Court will determine whether relocation should be allowed based on the child’s best interests.
The child’s best interests include things like stability, ties to family and community, and the benefit of maximizing parenting time with both parents. Based on these, it’s extraordinarily difficult to get an out of state move over the objection of a non-custodial parent.
Lastly, regardless of which parent you are, Minnesota takes parental kidnapping and custodial interference seriously so it’s important to know and respect the law. In some of these cases there is a temptation to “self-help”. In other words, to leave with the child anyway. This is almost always a bad idea.
The Burden of Proof in Child Relocation
The “burden of proof” is on the parent who is trying to move the child out of Minnesota. This means the parent who wants to move to another state with the child has initial responsibility to prove to the court that it’s in the child’s best interests to move.
However, there is one exception to this. The burden of proof does not fall on the moving parent 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 he or she has the initial responsibility proving to the court that it’s in the child’s best interests to stay.
Summary: Moving Out of State with a child can be hard
Child removal situations are governed by Minnesota Statutes, Section 518.175, Subdivision 3. In addition, Courts understand that children typically do best when they have ready and consistent access to both parents. This attitude is based on legal and social science research. It also has been codified into the best interests statute.
Although it does happen, it’s 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.
Effectively, the parent requesting to relocate needs to overcome the presumptions in favor of both parents having ready access to the child. He or she also must demonstrate that it’s in the best interests of the child for the removal.
Child relocation cases are complicated and taken seriously. These cases can raise issues such as parental rights, parental kidnapping and custodial interference.
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 Statutes, Section 609.26, Subdivision 1).
For other divorce or family law questions, please consult the list to the left or the FAQ page. If you’re interested in retaining an attorney to help you, please feel free to contact my office for a consultation using the contact information on the left or the contact form on the Majeski Law home page.