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FIGHTING RELOCATION WITH CHILDREN
Minnesota Move-Aways,

Our society has become increasingly mobile over the past several decades. In years past, it was not unusual for children to grow up, find jobs and marry in the same cities and states where they were born. However, now, with improved transit systems and international corporations, and even the internet with its dating services, it is not unusual for a person to move out of state even across the country based on employment changes, romance or simply to try a new environment.

Such relocations can wreak havoc on family relationships where children are torn between two parents and two states, often having to deal with long distance relationships with their own parent.

As a result of our changing society, state legislatures have attempted to enact statues setting forth requirements that must be followed when one parent seeks to relocate with the minor children. Too often, fathers, who less often have the benefit of judicial discretion when it comes to custody pronouncements, find themselves fighting to remain an integral part of their childrenís lives.

State laws vary broadly regarding when a parent must provide notification or seek permission to relocate. All too often state statutes facilitate the relocation by carving out presumptions in the law that presume that the parent with custody or with the greater amount of parenting time should be allowed to relocate with the children. This results in the non-custodial parent, too often fathers, having to fight an uphill battle to maintain consistent contact with their children. Even if the parenting time is equalized with additional time in the summer and on holidays, it removes that parent from their pivotal role in the childís development including schooling, religious education and even medical decision making. It is also a common theme in cases that involve Parental Alienation Conduct that seeks to systematically reduce the non-custodial parentís role in the childís upbringing. Unfortunately, most laws are far too permissive and once a relocation is allowed the ability of the non-custodial parent to contest increasing alienation is greatly diminished.

Generally, minor geographic changes are not considered significant. Yet, even seemingly minor changes can diminish a parentís role in a childís upbringing and make transportation for parenting difficult. The most common reasons cited include new jobs, new spouses or fiancťs, or improved environmental conditions. It is the slippery slope that can result in a cascade of later events that eventually make that parent little more than a post card and letter or an occasional visit in the childís upbringing.

Just what is considered a minor relocation may be a subject of dispute. In some states a relocation out of the county is significant. In others it is a relocation of a specified number of miles (50 to 150) away from the other parent. For example, in Wisconsin, a relocation of 150 miles or more requires notice to the other parent and potentially a hearing on custody issues. In yet other states, the laws are inconceivably inconsistent. A good example is the State of Minnesota. In Minnesota, a relocation within the state requires no advance notice or permission. That could mean a relocation of as much as eight hours one way from base to tip is acceptable. Meanwhile, a relocation of one mile to a bordering state would require the other parentís consent or a court order.

Laws are forever evolving. For example, on May 31, 2006, the governor of Minnesota signed the omnibus family bill which makes it much more difficult for parent's in Minnesota to relocate out of state with minor children. The new law goes into effect on July 31, 2006 and imposes on the parent seeking permission to move the child to demonstrate that the move would advance the childís best interest.

Specifically, the new Minnesota law, provides as follows:

Not unlike the present law, a parent cannot relocate of the state with a minor child unless that parent has:

(1) Consent of the other parent, if that parent has been given parenting time by an order or decree; or

(2) An order of the court allowing the relocation.

As a result, it is incumbent upon the parent seeking to relocate out of state to file a Motion and acquire and order allowing that relocation before doing so. A failure to follow this procedure creates a grave risk that dissenting parent may seek an ex parte order changing custody immediately pending a hearing on the issue.

If the matter proceeds to Court, the Judge may not allow the relocation if it is demonstrated that the purpose of the move is to interfere with parenting time given to the other parent by the decree. In the past when determining whether to allow a parent to relocate with the child, there was a presumption in favor of maintaining the present custodial arrangement. In other words, the custodial parent had the advantage and a presumption in his/her favor which often ended up with the court allowing the relocation.

The new law changes that analysis. The end result is that it will be far more difficult for a parent to relocate out of state and away from the other parent with a minor child. Under the new law, such determinations are made based on what is in the best interests of the child.

The factors the court must consider in determining the child's best interests include, but are not limited to:

(1) the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child's life;

(2) 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, taking into consideration special needs of the child;

(3) the feasibility of preserving the relationship between the nonrelocating person and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties;

(4) the child's preference, taking into consideration the age and maturity of the child;

(5) whether there is an established pattern of conduct of the person seeking the relocation either to promote or thwart the relationship of the child and the nonrelocating person;

(6) whether the relocation of the child will enhance the general quality of the life for both the custodial parent seeking the relocation and the child including, but not limited to, financial or emotional benefit or educational opportunity;

(7) the reasons of each person for seeking or opposing the relocation; and

(8) the effect on the safety and welfare of the child, or of the parent requesting to move the child's residence, of domestic abuse, as defined in section 518B.01.

It is critical to note that the new statute places the burden of proof on the parent requesting to move the residence of the child to another state, except that if the court finds that the person requesting permission to move has been a victim of domestic abuse by the other parent, the burden of proof is upon the parent opposing the move.

Not every state is the same as Minnesota. As a result, since the laws vary broadly, it is extremely important for a parent seeking to prevent relocation with children to know, understand and follow the detailed rules to prevent that relocation. If the custodial parent fails to follow the rules, it can often result in a change in custody. State laws often spell out requirements which may include:

NOTIFICATION AND OBJECTION.

A parent seeking to relocate must generally notify the other parent well in advance of a move. The timelines for that notification are specified in many state laws. Those same laws also provide specific instructions regarding the information that must be included in the notification.

In states that require notification, the other parent may also usually file an objection to the relocation or file a Motion seeking to prevent the relocation

CONSENT AND ORDER

Yet other states require not only notification, but consent of the other parent to allow the move. In the event the both parents do not consent, often the parent seeking to relocate most bring a motion seeking permission of the court. This often would include a request for a change in custody.

PRESUMPTIONS AND BURDENS

Regardless of the procedures required by state statutes, should the matter proceed to Court, decisions are made and swayed based on legal presumptions and burdens of proof. As a result the particular legal presumptions and burdens of proof in each state can dictate how a case should be presented and provide an early insight into the potential success or failure of a motion to relocate. One of the keys to preventing a relocation is maintaining consistent contact with children by non-custodial parents. Remain actively involved in their schooling, medical care and extracurricular activities. Document their activities their friends and the benefits of the area that reside in including extended family. A parent with limited involvement has a greatly diminished chance to contest the relocation.

Under many state laws the presumption whether to allow or disallow a relocation may depend and change based on the custodial situation.

For example, in many states, where the parent with primary physical custody seeks to relocate, there is often a rebuttable presumption that the intended relocation of the child will be permitted. If there is an objection, the presumption may be rebutted by demonstrating that the detrimental effect of the relocation outweighs the benefit of the change to the child. Detrimental effects include whether the non-custodial parentís role will be greatly diminished from what it has been historically. As a result, involvement before the requested relocation can be critical.

That presumption may change, however, if the parents share physical custody. In such cases, the presumption that exists is often to deny the relocation. Again, that presumption may be rebutted by presenting evidence that the relocation is in the child's best interest and that it will not interfere substantially with the nonmoving parent's relationship to their child. The main battle for fathers may be in seeking and gaining joint custody from the outset. Every agreement that diminishes that role may have a significant impact later. In any divorce setting it is imperative to establish each parentís intentions for the future and whether they have any intention of relocating or what the possibility of that occurring may be. If it is established in a factual finding that it is in the best interests of the children to remain in a certain area or a certain school district as part of an initial divorce order, relocation may be significantly impaired in the future. This is something that must be considered in any divorce decree. A failure to address this issue may leave a parent exposed to potential relocation.

Some factors courts consider when making determinations to allow or disallow a move include:

  1. The relative strength, nature, quality, extent of involvement, and stability of the child's relationship with each parent, siblings, and other significant persons in the child's life;
  2. Prior agreements in divorce decrees or orders of the parties. Such agreements are often given great deference;
  3. Whether the relocation would substantially interfere with the other parent's relationship with the child;
  4. Whether the benefit of the relocation outweighs any harm caused by the relocation;
  5. The reasons of each person for seeking or opposing the relocation and whether the request is made in good faith or is intended to interfere with the other parent's rights;
  6. The age, developmental stage, and needs of the child;
  7. The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations;
  8. The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent;
  9. The financial impact of the relocation as it relates to parenting time;

HOW TO PREPARE TO FIGHT RELOCATION

To fight a motion for relocation, there are several musts. First, a finding that the childrenís best interests are served in their current school district can be key. As a result, you must think ahead and spell those presumptions out in any custody determination. Second, establishing that there is no intent to relocate is important. This again can pre-empt a subsequent request and undermine the intent of the parent who later seeks to move.

To attack the request, it is important to attack any documentation supporting the move. A parent should try to demonstrate that the moving parent has not thought the matter through carefully and that the relocation is not in the child's best interest. Evidence would include information that the parent seeking to move has not thought through the childís needs. For example, the parent did not provide sufficient evidence about:

NEIGHBORHOOD & SCHOOL. There is little evidence regarding where the child will be living. A parent contesting the move may wish to bring up crime records, school performance or other deficiencies related to the area. (photos are helpful);

DAYCARE. Evidence that the parent relocating did not adequately consider or research daycare facilities that they intend to use, comparing what may be available in the new location to the present location including care by extended family members who may have children of a similar age;

EMPLOYMENT. The parent moving has no definite plans for employment or evidence that the employment planned is more lucrative given the cost of living to benefit the child. A person contesting the move may wish to include cost of living data and the availability of reasonable jobs in the area. Often vocational experts called Qualified Rehabilitative Consultants (QRCís) can provide that data and may prove to be important witnesses to resisting the relocation. In discovery, the person resisting the relocation should seek any information regarding the new proposed job or education including any employment contracts or offers, benefit information or brochures. They should counter act that evidence with local evidence that the same positions, income or education are available locally. This obviously takes time and it takes research. However, once a relocation is allowed, the chances of regaining a reasonable parenting position is greatly diminished. It is certainly true that with regard to relocation an ounce of prevention is worth a pound of cure.

HEALTH. If there are any health considerations regarding the move, those should be explored in depth by consulting with physicians, particularly the physicians of the children if that is the stated reason. Medical reports and documentation can be critical. If there are local alternatives, those should be explored. What are the other options?

ULTERIOR MOTIVES. Generally a parent seeking to relocate will not telegraph their ulterior motives to alienate the other parent. However, any e-mails, telephone messages, or letters that indicate an intent to alienate the children can be critical. If a parent threatens to ďtake the children awayĒ or makes other comments of a similar impart, those can easily swing a case in favor of disallowing the relocation. Listen and document. Those are keys to any family law case but, all to often, they are ignored. Retain letters, e-mails and voice messages that may be used later.

One truism is that if the Court allows the relocation, it often requires the party moving to pay more of the transportation costs related to visitation. This cost issue should be raised in any hearing as well as a request to change custody if the parent responsible for the transportation contemptuously fails to follow the courtís orders. In the even the non-custodial parent does not prevail, a finding in that regard may change those fortunes if the moving parent fails to follow through on their obligations.

There is no "standard" visitation schedule when the parenting time must occur at a distance. Often, however, the courts grant the non-custodial parent extended access times for fall breaks, spring breaks, Christmas breaks and summer most months. Maximize that time as an alternative and use it. A failure to follow court orders by the relocating parent when coupled with consistent contact by the non-custodial parent, friends for the children in the non-custodial parentís geographic area and other issues could result in a change of fortune.

Laws are forever changing and evloving. As a result, you should always consult with a lawyer on your legal matter.

 


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