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Divorce Myths: Moving Out of State with Children (Minnesota)

Posted by attorney Amanda Bloomgren

I recently spoke at a parenting through divorce class and once again, I was asked about the rules of moving out of state with a minor child. There is a big misconception about the rules in Minnesota regarding moving the residence of a minor child. Unless the other parent agrees, you may not move the residence of your child to another state without court approval. This is true even if you have primary physical custody (are the custodial parent).\*

The misconception arises because until fairly recently Minnesota law presumed that allowing a child to move to another state with the custodial parent was in the best interests of the child. The law has changed. Now, the burden of proof is on the custodial parent asking for permission to move the child to another state. The parent asking for permission must prove that it is in the child’s best interests (not the parent’s best interests) to be separated from the non-custodial parent. This is not an easy hill to climb.

I usually get questions about this issue when parents become concerned about what rights they are loosing if they agree to allow the other parent to have primary physical custody. Since the law change, the actual benefits of having primary physical are significantly limited. Now primary physical custody means little more than less than 50% parenting time. Percentage of parenting time of course has implications for child support, but legal custody means less now so as it relates to actual parenting rights.

As an aside, it should be noted, that the change in the law simply limits moving out of the state and does not limit moving within the state (which could feasibly be a significant distance apart). Unless there is a court order limiting where the parent with physical custody resides, a child could be moved anywhere in Minnesota without having to get the consent of the other parent or the permission of the court.

Issues like these are one reason why I suggest that all persons who are seeking dissolution of marriage or dealing with custody issues consult an attorney. This is true even if you have an excellent relationship with your former spouse. Remember, especially with kids involved, your decisions will have long lasting and potentially permanent impact. At a minimum an attorney can help you issue spot matters that could arise in the near and not so near future.

*For this to apply, Minnesota law requires that custody has been determined and that the parent not seeking the move have some parenting time allowed by court order.

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