DIVORCE AND MOVING CHILDREN FROM MINNESOTA

 We are finding an increasing number of clients come to us with questions about moving their children.

 FAMILY LAW IN MINNESOTA

Minnesotalaw requires you to obtain permission of the Court before moving out of State with your children if there is an existing child custody order.  This permission is granted when a parent can prove that a move will be in the best interests of the children. Increasingly, our clients have found it difficult to obtain this permission—especially when the other parent has been involved in the children’s lives. 

That does not mean that it is impossible to obtain this permission.  The difference between a successful request to move is often in the amount of preparation you do.  You should have a job and a home.  You should know where your children will go to school.   If you have family in the new area, you should be prepared to explain why it is important for your children to develop a relationship with this family.   You should be able to explain the problems of remaining inMinnesota, and the effect that staying here will have on your children.   Finally, you should have a plan that allows your children to maintain a good relationship with their other parent.  

FAMILY LAW LITIGATION IN MN

Litigation is the last resort in most of these cases.  Your first order of business will be to attempt to convince the other parent that the children need to move with you.   You may have a mediation clause in your present custody order which mandates an attempt to mediate, but even if you don’t have a mediation clause, you may very well want to try that before looking to the Courts.  In almost every case, mediation of an issue like this, if it results in a settlement, will be less expensive than litigation.  Studies show that people who resolve disputes through mediation are happier with the result, even if they could have gotten a better result through litigation.  And our experience shows that Courts have some reluctance to permitting a move, even where a parent can show benefit to the children.  

If you are on the receiving end of a request to move your children, you will need to explain why it’s not in the best interests of your children to move.  You will want to focus on their life inMinnesotaand what your children will lose out on if they move.  You will be slightly favored in Court, since the other parent will have the burden of proof of showing why it’s in your children’s best interests to move, but that doesn’t mean that you should simply assume that there is no case.  Consider what might happen if, for example, your children’s other parent can’t find work inMinnesota.  Perhaps your children would be better served if their other parent had better support from family in the new location.  Finally, consider that your children’s other parent may simply not have a choice whether to stay in Minnesota or move, and your children may be moving from their home no matter what (even if it is into your home).  

But what if the other parent moves the children without my permission? 

In this event, you have remedies, most of the time. Minnesotacustody orders are enforced in every other state pursuant to the Uniform Child Custody and Jurisdiction Act.   Under that Act, you can obtain an Order which gives you the ability to ask law enforcement to assist you in securing your children’s return.   There may be additional criminal consequences for removing the children, especially if you are not told where you can find your children.  

MOVING CHILDREN TO A FOREIGN COUNTRY DURING A DIVORCE

If the children are removed from the country, you may have rights pursuant to the Hague Convention, an international agreement that permits you to enforce aUnited Statescustody order in another country.  Unfortunately, not every country is a signatory to the Hague Convention.  In those countries, you will be required to seek redress through the foreign country’s courts, and many times, those courts are unwilling to assistU.S.citizens. 

For those cases where a parent may want to remove a child to a non-Hague Convention nation, it is necessary to prevent the travel before it occurs.   One way is to limit the ability of a parent to travel with the children within the terms of a custody order or divorce decree.   Another is to keep your children’s passport with you, or to withhold your permission for the other parent to obtain a passport for your children.  Finally, you may enroll in the State Department’s Children’s Passport Issuance Alert Program (http://travel.state.gov/abduction/prevention/passportissuance/passportissuance_554.html), a program which will alert you if anyone applies for a passport on behalf of your children. 

Jennifer Moore

www.MooreFamilyLawMN.com