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: