In any Minnesota family law dispute involving one or more minor children, the court must find that all orders affecting the children are in the children’s best interests. This includes divorce cases and cases regarding child custody, child support, and other issues. State law presumes that it is in a child’s best interest to have regular access to both parents. A child will commonly live with one parent most of the time, and have regular visitation with the other parent. A 50/50 split of parenting time, where a child spends an equal amount of time with each parent, is often impractical and sometimes impossible. If the parents cannot agree on a parenting and visitation schedule, courts will create one for them. But what happens when one parent wants to move to another state? What if they want to take the child(ren) with them?
Courts must grant orders for parenting time in any divorce or other case with minor children. Section 518.175, subdivision 1 of the Minnesota Statutes sets out factors for a court to consider and requirements for orders granting parenting time. State law presumes that, unless there is evidence to the contrary, each parent should receive at least twenty-five percent of the total parenting time, based on “the number of overnights that a child spends with a parent.”
Subdivision 3 of § 518.175 restricts moving a child out of state when:
The parent seeking to relocate out of state with the child may only do so with the other parent’s consent or a court order. The statute prohibits a court from allowing a move if it finds that “the purpose of the move is to interfere with parenting time given to the other parent.”
The parent who wants to move has the burden of proving to the court that the move would be in the child’s best interest, based on a list of eight factors:
This list is non-exhaustive, meaning that while a court must consider these eight factors, it may also look at other relevant issues affecting the child and the parents.
The Court of Appeals of Minnesota has ruled in at least two cases involving out-of-state moves since 2018. In both cases, the court affirmed rulings from lower courts. It allowed one move, from Minnesota to Pennsylvania, based in large part on allegations of abuse and an unequal division of parenting responsibilities. It prevented the other move, which would have relocated the child from North Dakota to South Dakota, because of the burden imposed by the greater distance between the child and the child’s father.
In Hesse v. Wingrove, the mother moved to Pennsylvania with the child, who was about eighteen months old at the time. The parents were not married, and no court had entered orders on custody or parenting time. The father sought emergency relief in a Minnesota court, resulting in the child’s return to his custody. The case went to trial on the custody issue. The mother testified that the father became physically abusive towards her after the child was born, and that she “provided the majority of the child’s care.” She stated that she moved with the child to the home of the child’s maternal grandmother in Pennsylvania because of the abuse.
The trial court awarded the mother sole physical custody of the child. It awarded the father seventy-five days per year of parenting time, and ordered him to pay child support and half of the cost of the child’s transportation between Pennsylvania and Minnesota.
The father argued on appeal that the trial court failed to consider “the nature, quality, extent of involvement, and duration of the child’s relationship with…other significant persons in the child’s life,” specifically the child’s paternal grandparents in Minnesota, as required by § 518.175 subd. 3(b)(1). The Court of Appeals rejected this argument and affirmed the trial court’s ruling in April 2018. It noted that the paternal grandparents testified at trial about their extensive visits with the child.
The parents in Markuson v. Markuson divorced in 2013. Their two children resided with the mother. The divorce decree’s parenting plan stated that the children would stay with the father “on alternating weekends and holidays during the school year and on alternating weeks during the summer.” The mother and father lived about ninety miles apart at that time, in Moorhead and Henning, Minnesota, respectively. Upon the mother’s request, the father agreed that she could move to Fargo, North Dakota with the children. The Court of Appeals described the increase in distance as “negligible.”
The mother remarried, and in 2018 her husband received a job offer in Sioux Falls, South Dakota. This would almost triple the distance between the father and the children. He did not consent to this move, so the mother filed a motion with the court under § 518.175 subd. 3.
The trial court denied the mother’s motion, finding that the move would not be in the children’s best interests. The Court of Appeals affirmed this ruling in September 2019. It addressed two provisions of § 518.175 cited by the trial court. Subdivision 3(b)(3) directs courts to consider the “feasibility” of maintaining existing orders on parenting time. The trial court found that the additional distance between the father and the children would make this difficult, if not impossible. Subdivision 3(b)(6) looks at whether the move would improve the lives of the children or the custodial parent. Here, the trial court found that any benefits to the children from their stepfather’s new job would not outweigh the harm to the relationship with their father.
Anthony Toepfer, a family law attorney in St. Cloud, Minnesota, represents people during uniquely difficult times, including divorces and child custody disputes. He advocates for his clients’ rights and interests in the courtroom and at the negotiating table. You will always have access to up-to-date information about your case at Toepfer at Law. We are always available to discuss your case and answer your questions. Please contact us today through our website, or give us a call at (320) 497-4416 to schedule a confidential consultation to see how we can help you.
Attorney Anthony (Tony) Toepfer began his legal career in the area of business and technology law. While successful in that field, he felt there was something missing. He turned down opportunities, because, as he says, “I wanted to see the faces of the people I was helping.” He transitioned into family law practice, and found what he was looking for.About Tony Toepfer