dad and son moving - Mundahl Law, PLLC

When a couple breaks up or divorces, one or both partners may need to move on in a literal, as well as an emotional, sense. Sometimes that involves a move outside the state of Minnesota. Perhaps there is a new job opportunity or transfer out of state, or the desire to move closer to supportive friends and family in another state. Whatever the reason for the move, the process is complicated when there is a child involved. What happens when one parent moves out of state?

The short answer is, if the parent seeking to move is the custodial parent, any move must either be agreed to by the other parent (if the other parent has parenting time), or permitted by court order.

When a Custodial Parent Wants to Move

As noted above, a parent may want to move out of state for many reasons. But if a Minnesota court finds that a parent's proposed move is motivated by the desire to interfere with the other parent's parenting time, that court will not approve the move.

That is not to say that the parent may not move—but the court will not allow the child's residence to be changed to another state. A parent who is trying to deprive the other parent of time with the child could end up losing custody, which could mean paying child support as well.

When is moving with a child permissible? Well, as with deciding custody in the first place, Minnesota courts apply a "best interests of the child" standard when determining if a move is permissible. The criteria considered are set forth in Minnesota Statutes 518.175(3). They are:

  • the nature and quality of the child's relationship with each parent as well as with siblings and other significant people in the child's life;
  • the child's age, development, and needs, and how the move would likely affect the child's development;
  • how feasible it will be to maintain the relationship with the nonrelocating parent;
  • whether relocation will enhance the general quality of life for the child and relocating parent;
  • the reasons of each parent for seeking or opposing the relocation; and
  • what effect domestic abuse may have on the child or the parent seeking relocation.

The burden is on the parent seeking the move to prove the child's residence to another state that it will be in the child's best interests. This is a change from recent law; not that many years ago, if a custodial parent wanted to move, the other parent had the burden of proving the move was not reasonable.

There is one notable exception to the burden of proof under current law: if the parent who wants to move out of state with the child has been a victim of domestic abuse by the person opposing the move, the burden shifts to the parent opposing the move to prove it is in the child's best interests to stay in Minnesota.

What Should You Do If You Want to Move With Your Child?

If you have a final custody order, such as one set forth in a divorce decree, you need court approval or the other parent's permission for your move. If possible, it is better to work things out with the other parent: explain why you want to move, and what your plans are to make sure that the other parent has plenty of time with the child or children. Sometimes, this is a less threatening, and therefore more successful move than blindsiding your ex with a motion seeking permission to move out of state. It can also be less expensive than taking court action, if you believe your child's other parent is inclined to agree.

There always exists the possibility that your ex will not consent to the move and in that case you may face a court action from them. Your ex may feel threatened and go on the offensive, perhaps petitioning the court for a change in parenting time or even custody.

The wisest course of action, if you are contemplating a move, is to consult with an experienced Minnesota family law attorney. An attorney can help you anticipate how a court might rule in light of your specific circumstances and help you decide whether and how to approach your child's other parent about the prospective move. If it is important to you to make the move with your child, mediation or some other form of alternative dispute resolution could help you and your ex to reach an agreement without going to court. Be cautious of an attorney who is unwilling to discuss any option other than litigation. It rarely is a situation where litigation is the best course of action for you. Alternative dispute resolution is almost always more conducive to maintaining a cordial relationship between you and your co-parent, so it should at least be considered before deciding to litigate.

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