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.