On May 31, 2006, the governor signed the omnibus family bill which gets rid of the presumptions related to relocation of minor children out of state. The new law goes into effect on January 1, 2007 and imposes on the parent seeking permission to move the child to demonstrate that the move would advance the child’s best interest.
Specifically, the new law provides as follows: Not unlike the present law, a parent cannot relocate of the state with a minor child unless that parent has:
- Consent of the other parent, if that parent has been given parenting time by an order or decree; or
- 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 an order allowing that relocation before doing so. A failure to follow this procedure creates a serious risk that dissenting parent may seek an ex parte order changing custody immediately pending a hearing on the relocation issue.
When the matter is considered by the Court, a Judge may not allow the relocation if it is demonstrated that the purpose of the move is to interfere with parenting time that has been given to the other parent by a decree or order. 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 significant advantage in court hen seeking to relocate with a legal presumption in his/her favor. As a direct result, in most cases the relocation was allowed. This presumption and advantage no longer exists under the new law. 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 move-away 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:
- 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;
- 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;
- 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;
- 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 the relocation either to promote or thwart the relationship of the child and the nonrelocating person;
- 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;
- the reasons of each person for seeking or opposing the relocation; and
- 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.
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