Move-Away Case in Minnesota Holds a Parent Wanting to Move a Child is Not Entitled to an Evidentiary Hearing.

MP900305711[1]Minnesota Statute Section 518.175, subd.3(b) is commonly known as the “removal statute”  or move-away statute.  This section requires that a Minnesota parent seeking to move a minor child’s residence out of Minnesota has to  have permission from the other parent or has to file a motion and obtain a court order granting him/her permission.     In any move-away motion, the district court has to make findings based upon eight factors in granting or denying a motion.   Minnesota court of appeal determined that an evidentiary hearing is not required by the move-away statute.  What this means for parents seeking to move with the children from Minnesota is that his or her pleadings and affidavits to the district  court must be persuasive and complete because no testimony will be heard by the court.

The court has to decide a move-away case by considering the following eight factors.  A parent’s affidavit and motion should address these eight factors.

The relevant language of 518.175,subd 3(b) reads 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;

(6) 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;

(7) the reasons of each person for seeking or opposing the relocation; and

(8) 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.

(c) The burden of proof is upon 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. The court must consider all of the factors in this subdivision in determining the best interests of the child.

Family court motions are decided upon  a parent’s documents filed with the court called pleadings including affidavits and the oral argument of counsel at the hearing.   As a rule, parents  do not testify nor does the court hear testimony from witnesses.  On the other hand,  the court will take testimony and evidence as proffered at an evidentiary hearing in family law.  The Minnesota removal statute has nothing to say about an evidentiary hearing when a parent files a removal motion.

In a recent published case, however, the Minnesota court of appeals held that the district court may grant or deny a removal motion without holding an evidentiary hearing.     Le v. Holter   A12-201  (Minn.App.11/04/2013) link:  http://caselaw.findlaw.com/mn-court-of-appeals/1648407.html

In Le v. Holter,  the parents’ divorce decree granted them joint legal custody with sole physical custody to the Mother.  Father had parenting time every other week-end and one mid-week overnight.  Mother filed a removal motion three years after the divorce asking to remove the children to California or asking the children’s best interests be evaluated relative to the move. Father filed a response asking the court to deny the move.

The district court denied Mother’s request and made findings on each of the eight factors in Minn. Stat. Section  518.175,subd 3(b) referenced above.  Mother filed an appeal alleging among other issues that the district court made an error in not holding an evidentiary hearing on the removal motion.  Mother also argued that the Nice-Peterson standard is applicable to the removal statute.  The Nice-Peterson standard is applied in modifications of custody or parenting time.  Nice-Peterson requires that the parent wanting to modify custody or parenting time has to show that the children are presently endangered in their contact or environment with the other parent and that a change is in the best interests of the  children.  Nice-Peterson is a two-step process. If a parent can substantiate with affidavits that the children are endangered, then the court will set an evidentiary hearing to decide modification in custody or parenting time.

The court of appeals held that the Nice-Peterson standard to modify custody or parenting time does not apply to the removal statute. The court held further that nothing in the removal stature required the district court to hold an evidentiary hearing.   Therefore, the district court did not err in ruling on Mother’s removal motion without holding an evidentiary hearing.    The district court may decide a removal motion based upon pleadings, affidavits, and the oral argument of counsel according to the court of appeals.

What does this mean for a parent seeking to move from Minnesota with a child?  A parent asking for permission to move  has to prepare legal pleadings  specific with facts, examples, research accomplished in the new area,  and other documentary and affidavit evidence that addresses all eight factors.  The parent must substantiate that the move is in the best interests of the child in addressing all eight factors.

As of this post, Mother has filed a petition to the Minnesota Supreme Court asking for a review of the court of appeals decision.

Kate Willmore, Saint Cloud, Minnesota, Family Lawyer and Mediator

(320) 217-6030   kaw@katewillmorelaw.com   www.katewillmorelaw.com   www.mediationminnesota.com

Copyright 2014

About Kate Willmore, Esq.

Kate Willmore, Saint Cloud, Minnesota, divorce, custody and family attorney brings over 25 years experience to every client's legal matter. *** Licensed in Minnesota and in California

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