Can I Take My Children Out of State Before a Divorce in Minnesota? Understanding Your Rights

When parents begin thinking about separation or divorce, one of the first questions they ask is whether they can take their children out of state for a vacation, holiday, or family visit. It’s normal to worry that the other parent might accuse you of kidnapping or threaten to call the police.

The reassuring news is that Minnesota law is very clear about your rights before a divorce or custody case is filed. At this early stage, both parents have full and equal rights to their children, and the criminal statute often mentioned—Minn. Stat. § 609.26—rarely applies.

Below is a friendly explanation of what the law says and how to approach out-of-state travel safely and legally.

1. Before a Divorce Is Filed: Both Parents Have Full Custody

Many parents are surprised to learn that before any legal case is opened, Minnesota gives both legal parents 100% custody of their children.

This means:

• Neither parent has greater authority than the other.
• No one can “violate custody rights” if no court order exists.
• Police generally cannot intervene in parenting disputes without a court order.

Because you both share equal rights, you may take your children out of state temporarily for:

• A vacation
• A holiday or long weekend
• Visiting relatives
• School, sports, or activity-related travel

The key requirement: you must intend to return and cannot be trying to hide or permanently relocate the children.

2. Does Traveling Break the Law? Understanding Minn. Stat. § 609.26

Minn. Stat. § 609.26 covers custodial interference, but it applies only when a parent violates an existing court-ordered custody or parenting-time arrangement.

If no order exists:

• Both parents have equal rights
• You cannot “deprive” the other parent of rights that haven’t been legally created
• A temporary trip is not a crime unless the parent refuses to return the children or intentionally conceals them

To keep communication smooth and avoid conflict, it can help to:

• Let the other parent know about your travel plans
• Share your travel dates and general itinerary
• Put your notice in writing
• Confirm that the children will return home

These steps are not legally required, but they build trust and prevent misunderstandings.

3. How the Rules Change Once a Case Is Filed

Once a divorce or custody case begins, Minnesota’s relocation law becomes important.

Under Minn. Stat. § 518.175, subd. 3, a parent generally cannot permanently move the children out of Minnesota unless:

1. The other parent agrees in writing, or
2. The court grants permission

This law applies only to permanent moves and only after a custody or parenting-time order exists.

Before a case is filed, this relocation statute does not apply.

4. Temporary Travel vs. Permanent Relocation

It’s important to understand the difference:

✔ Temporary travel before filing

Allowed, as long as you intend to return and are not hiding the children.

✘ Permanent move after filing

Regulated and generally requires consent or court approval.

If a parent attempts to permanently remove the children without permission, the court may intervene—and that’s when criminal statutes become relevant.

5. Tips to Avoid Conflict During Travel

Even though the law allows temporary travel before a case is filed, the following steps help keep things peaceful:

• Provide written notice
• Share travel dates and destination
• Keep your communication respectful
• Maintain routines for the children when possible

Small steps can make a big difference during an already stressful time.

6. When to Contact a Minnesota Family Law Attorney

Every family is unique. Some parents navigate these issues easily, while others face challenges—especially when communication or trust is strained.

Consider speaking with a family law attorney if:

• The other parent threatens to involve law enforcement
• You worry the other parent may try to leave with the children
• A custody dispute seems likely
• You want reassurance about your travel plans
• You are preparing to file for divorce

An attorney can help you understand your rights and protect your relationship with your children.

Conclusion: Know Your Rights Before Traveling Out of State

Before a divorce or custody case is filed in Minnesota, both parents have equal custodial rights, and temporary out-of-state travel is usually allowed. Criminal statutes like Minn. Stat. § 609.26 do not apply without a court order, and relocation laws under Minn. Stat. § 518.175, subd. 3 apply only after the court has established custody or parenting time.

If you’re feeling uncertain or want guidance tailored to your situation, help is available.

For compassionate, experienced legal advice, contact Mundahl Law. Our family law attorneys are here to help you understand your rights, protect your children, and move forward with confidence.