Minnesota Divorce and Family Law Blog

Moving Out of State With Minor Children

One important change in Minnesota law in recent years pertains to changing the state of residence of minor children.  Previously, Minnesota was one of a minority of U.S. states to allow a custodial parent to move with a child to another state unless the non-moving parent proved that the move was contrary to the child's interests.  That is, previously, the non-moving parent had the burden of proof, and if the burden of proof was unmet, the moving parent was granted the right to change the child's state of residence.

The current law in Minnesota now matches the majority of other jurisdictions: the moving parent has the burden of proof, to show that the move is consistent with the child's interests.  Minnesota Statute Section 518.175, subd. 3, provides as follows:

(a) The parent with whom the child resides shall not move the residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree.  If the purpose of the move is to interfere with parenting time given to the other parent by the decree, the court shall not permit the child's residence to be moved to another state. 

(b) The court shall apply a best interests standard when considering the request of the parent with whom the child resides to move the child's residence to another state. 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.

It is important to consider that, in many cases, the burden of proof is not dispositive.  If the moving parent has a compelling basis for moving the child, the court would permit the move, whether the moving parent or non-moving parent had the burden of proof.  Conversely, if the moving parent has a weak case for moving, it would not matter whether the moving parent or the non-moving parent had the burden of proof; the request to move would be denied.  The recent shift in the law impacts those cases in which the moving parent arguably has a strong basis for moving the child, but the non-moving parent has an equally strong basis for opposing the move.  

Moreover, as with most other custody and parenting issues, the family court is likely to rely on the observations and recommendations of a custody expert or parenting neutral in determining the relative merits of a moving parent's contentions versus the non-moving parent's oppositions.  

Where the Children Should Go to School

When divorced or separated parents need to make a decision about where their child or children will attend school in the fall, it can turn into a legal dispute. Regardless of the custodial arrangement that the children live by, it is preferable if the parents can be in agreement about school enrollment. If the parents disagree, then the designation as to legal custody may be important. Parents with joint legal custody share the authority to make a decision about school enrollment. If each parent with joint legal custody has a different school arrangement in mind for the child, then the issue likely needs to be resolved by the family court or a parenting neutral.

Unfortunately, in many instances, the family court judge would rather not make a decision without the input of a parenting neutral, and there may not be time before the beginning of the school year for a parenting neutral to investigate the situation.

When a child's parents do not share joint legal custody, then there is less likely to be a legal issue regarding school choice. The parents' disagreement about the choice of school may defer to the decision of the parent with sole legal custody. But the school decision must be made in a manner that is consistent with the best interests of the child.

If the decision is whether to keep the child at the same school, or change the school the child attends, the child is likely to stay attending the same school unless the parents agree to a different school, or there is a compelling reason for the child to change schools over the objection of one of the parents.

Home Alone

Yes, over the holidays I spotted the last scene of the movie Home Alone while switching channels. Who didn't? So, how old should a child be to be left home alone? One of the most common questions, especially when children are in the care of a single (and busy) parent.

A few years ago, I needed to address this question in an actual case when I was serving as parenting time expeditor for a divorced couple with one child. There is no law directly on point, so I contacted a child development professional. The answer was, as so often is the case: it depends. Different children have different maturity levels, and differing ability to handle the responsibility of being alone.

Five-year-olds are clearly too young. Most older teenagers are old enough be home alone. The issue arises most when there is a child involved between the ages of eight and eleven, which is the period of time during which most children grow old enough to be home alone. Also, when there are multiple children involved, parents may disagree on how old the older child(ren) need(s) to be to supervise the younger child(ren).

Ultimately, the resolution lies either in the parents' agreement about what is reasonable or, in the absence of agreement, the recommendation of a neutral professional.

Child Custody Neutrals

If divorcing or separating parents disagree about child custody or parenting arrangements, it is likely necessary for a neutral professional to be involved in resolving the dispute.  The most common neutral professionals are custody evaluators, guardians ad litem, parenting time expeditors, custody mediators and parenting consultants. 

Custody evaluators investigate the facts and circumstances surrounding the child's situation, and render a written report with observations, comments and recommendations.  Typically the custody evaluation takes three to four months.  The custody evaluator will interview each parent; meet with the child (usually at least once in each parent's care); and contact collaterals such as family members, teachers and medical professionals.  The custody evaluator does not have the authority to make a final decision, but his or her recommendations are given substantial weight when the court makes that decision.  The custody evaluator does not stay involved in the case beyond the point that the custody report is issued.

Guardians ad litem are appointed to represent the interests of the child.  A guardian ad litem is not literally the child's attorney, and may or may not be a practicing attorney.  The guardian ad litem becomes familiar with the child and the child's circumstances so as to be able to inform the court of what is in the child's best interests.  The guardian does not have the authority to make the custody decision, but the guardian's comments and observations are given substantial weight.  The guardian may be involved in the case over the course of weeks or months (and less commonly, years). 

Parenting time expeditors are described in a separate post.  Custody mediators meet with the parents to attempt to facilitate an agreement.  The mediator typically will not meet with the child directly, and has no authority to make a decision, and no opportunity to speak directly to the court. 

A parenting consultant has broader authority that is usually defined in the agreement that provides for the consultant's appointment.  The consultant will meet with the parties and will determine to what degree it is necessary and appropriate for the consultant to meet with the child.  The consultant typically will attempt to mediate the dispute, as a mediator would.  But if there is an impasse, unlike a mediator, a consultant often has the authority to make a decision.  Depending on the terms of the consultant's appointment, the consultant's decision may be binding on the parties and subject to review by the family court. 

Different child custody cases can benefit from different child custody neutrals, depending upon the facts and circumstances of the custody dispute.  The purpose of the neutral is to bring the dispute to a conclusion relatively quickly and inexpensively, and to avoid the high conflict of family court litigation. 

Child Custody: Where does the kid WANT to live?

If I had to name the question that comes up most often, it would be this one: how old does a child of divorced, separated or unmarried parents have to be to decide which parent the child wants to live with? In typical manner, the answer is not a simple one. There is no fixed age when a child celebrates a certain birthday and suddenly holds the trump card to influence a family court judge's decision regarding child custody. It is safe to say that a 3-year-old is too young to decide. And a 17-year-old with car keys and an attitude can wield a certain amount of control over where they spend the night.

It is the ages in the interim that make things more complicated. At some point between age three and seventeen, most youngsters gains sufficient maturity to express to a guardian ad litem or custody evaluator a preference to live with one or the other parent. The guardian ad litem or custody evaluator may pass that information on to the family court judge if it believed to be sufficiently reliable and not based on the undue influence of the "preferred parent." But that point in time is not the same for every child. Therefore, it is something that is considered on a case-by-case basis.

Moreover, in most cases, if the child expresses a reliable preference for one parent, there will be other factors that support placing the child in that parent's custody. The family court might be informed that the child has such a preference, but also that the "preferred parent" provides the child with a more stable home environment, has a significant other or extended family members with whom the child has a good relationship, and/or is more inclined to support the child's contact with the other parent.

That gives the family court impetus to award custody to the "preferred parent" without resorting to the child's preference as a basis for the custody decision. Family court authorities and children's therapists are loathe to place a custody decision on the shoulders of the subject child. A child custody arrangement is required by law to be based upon the child's best interests as a whole, and if at all possible, the family court will avoid rendering a custody decision that can be said to be based primarily on the child's preference.