Relocation and Separation – What Rights Do You Have?

Posted by Tentinger Law Firm

reloation

It might seem that after your divorce or custody case and the imposition of a parenting plan or custody agreement, that the worst is over. You and your spouse have separated, and now you can try to put things back together. But then you discover your spouse wants to move away with the child. Maybe to another city, or even another state. Can this happen? Can you stop it? And what happens to the children?

A Substantial Change in Circumstances

Minnesota law, like nearly every other state, requires a showing of a “substantial change in circumstances” before a modification in a parenting plan or custody agreement may be made. A move of more than 50 miles, or more than an hour’s drive, is generally considered substantial, although there is no specific requirement.

The moving or relocating parent is required to get the permission of the non-relocating parent before the move. Minnesota has no specific requirement in terms of notice to the non-relocating parent but notifying the other party as far in advance as possible is always a good idea. If the non-relocating parent does not agree, the relocating parent will have to file a motion with the court requesting permission to move, so the more quickly the relocating parent acts, the better.

There are a variety of valid rationales for moving, including financial opportunity, personal or romantic reasons, or educational opportunities for either the child or parent. However, the parent that wants to move must show that the move is in the child’s best interest. The courts will not allow a move if the perceived purpose is to impede the non-custodial parent’s visitation and custody rights.

Best Interests of the Child

In family court, especially after the divorce or custody case is final, the best interests of the child are always paramount. Whether or not both parties agree to the relocation, the matter will need to come to court for a final judgement.

If both parties agree to the relocation, the final judgment will be a formality, but if the non-relocating party objects, then the court will hear evidence on both sides as to why the relocation is or is not in the best interests of the child. The burden is always on the relocating parent to demonstrate why the move will be in the best interests of the child. It is presumed children are better off where they have family, friends, and established routines.

The court will also consider:

  • The nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate and with the non-relocating person, siblings, and other significant persons in the child’s life.
  • The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development.
  • The feasibility of preserving the relationship between the non-relocating parent and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties.
  • The child’s preference, taking into consideration the age and maturity of the child.
  • Whether there is an established pattern of conduct of the person seeking relocation either to promote or thwart the relationship of the child and the non-relocating person.
  • Whether relocation of the child will enhance the general quality of the life for both the custodial parent and the child including, but not limited to, financial or emotional benefit or educational opportunity.
  • The reasons of each parent for seeking or opposing the relocation.
  • The effect on the safety and welfare of the child, or of the parent requesting to remove the child’s residence, of domestic abuse.

After the Hearing

If the court determines it would be in the best interests of the child to relocate, then an order will be issued allowing the move. The parenting plan will be adjusted accordingly at that time.

If the court determines it will not be in the best interests of the child to relocate, the order will so state. In that case, the parent wishing to relocate will have to decide whether to move without the child, necessitating a complete rewriting of the parenting plan, or to change his or her plans.

Never relocate with a child without the permission of the other party and a court order. Parental kidnapping is a crime in all 50 states, and crossing a state border, even with one’s own child, can be a Federal crime. Always contact an attorney before making this kind of transition in your life and your child’s life.

To discuss your questions with an experienced attorney contact Tentinger Law Firm at 952-953-3330 or use our quick contact form to schedule a free half-hour initial consultation.