After a divorce is over, one parent may want to move out of the State of Minnesota. That parent may have physical custody of the parties’ minor children, and will probably want to bring the children along. Regardless of whether you are the person wanting to move with the children, or the person wanting the children to remain in Minnesota, you need the help of an experienced family law attorney.
One of the most important things a good attorney does is to present a sincere, credible, powerful story to the court. In the case of a motion to move out of state, the story has to describe the child’s important relationships and contacts within the State of Minnesota (or it has to describe the lack of the same). The story can be told by the parent, but it can also be told by others–including relatives, neighbors, teachers, and other adults who know about the child’s circumstances. Sometimes a professional psychologist or social worker needs to be consulted for his or her opinion.
When a party goes to court to request permission to move the children out of Minnesota, typically there is no requirement that the court conduct an evidentiary hearing with in-court testimony by witnesses. Usually, motions to move out of state are decided on the basis of written affidavits that are submitted by the parties and by their respective witnesses. Becaues so much is riding on them, a great amount of care needs to go into the drafting of these affidavits.
Minnesota Statute Sec. 518.175, Subd. 3 sets forth the criteria that a court is required to consider when considering a parent’s request to move out of the State of Minnesota with a child. You can see this statute here: https://www.revisor.mn.gov/statutes/?id=518.175
Of course, this statute simply sets for the legal criteria in dry language. A good attorney knows how to make an argument that combines the legal criteria with a compelling story in order to create a vivid picture in the judge’s mind.
If you do not have any parental rights, and the child’s custodial parent says they are going to move, you need to act immediately. Usually, the person without parental rights is an unwed father, and this is usually because his parental rights were never established by a court order.
Sometimes an unmarried father signs a Recognition of Parentage (called a “ROP”) at the time of a child’s birth. This ROP is sufficient for establishing the father’s child support obligation. However, the ROP confers no parental rights on the father. Under Minnesota law, an unwed mother has sole physical and legal custody of her child who was born out of wedlock. An unwed father can get physical and legal custody and parenting time, but he needs to bring a formal proceeding in court in order to do so. An unwed father has no custody, no parenting time, and no other rights–unless and until these rights are established by a court order in a paternity or custody proceeding.
If parental rights have not been established, or if no parenting time has been awarded by a judgment and decree, the parent with custody of the child can move out of Minnesota without the consent of the other parent.
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