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? Maybe (for emotional, social and/or financial reasons) you want to move closer to family and friends? Regardless of the reason for relocating, most separated or divorced parents in Minnesota can usually move to another state. However, what if you or your ex want(s) to take the children and move out of the state?
In Minnesota you’re talking about a type of family law situation 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 Removal and Child Relocation Cases
For simplicity’s sake, child relocation cases come primarily in one of the two situations:
- One Parent has all the Parenting Time, or
- Both Parents have Parenting Time.
Child Relocation in Minnesota with Sole Custody and 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.
Child Relocation in Minnesota with 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 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.
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 with parenting time.
- 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 the other parent is against the child moving, the court will determine whether relocation should be allowed based on what’s best for the child.
- When determining whether the parent can relocate to another state with the child, the court will consider the following: (see below infographic)
* 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.
So, Can I Move Out of State with My Child?
Child removal situations are governed by Minnesota Statutes, Section 518.175, Subdivision 3. In addition to the language in the statutes, 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 science research.
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. 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 Statutes, Section 609.26, Subdivision 1). Therefore, if you find yourself in a relocation case, retain a family law attorney to obtain legal guidance that is specific to your situation and state laws.
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.