Posts Tagged ‘Out of State Moves’

Out of State Child Support Orders

Saturday, May 29th, 2010

Sometimes, following a divorce or paternity adjudication, one or both of the parties may decide to move to a different state. While out-of-state moves present a number of important challenges – in many cases, it can become nearly impossible for the noncustodial parent to remain actively involved in the child’s life – people often ask about potential child support implications. Can the existing child support order be changed or enforced in the new state? How will child support be calculated in the future?

In Minnesota, these types of issues are governed by the Uniform Interstate Family Support Act (“UIFSA”). See Minn. Stat. § 518C. And, in most cases, the answers are extremely fact specific. What is true in one case may not be true in another case. It is difficult to generalize. It is important for you to consult an attorney about the facts of your case.

Recently, however, the Minnesota Court of Appeals attempted to define the outer edges of the out-of-state modification doctrine. In Hennepin County v. Hill, the Court confronted the question of whether a Minnesota court could modify the duration of a child support order originating from Mississippi, once the order had been registered in Minnesota for purposes of enforcement and modification. In rejecting the father’s request that his child support obligation be shortened, the Court explained that the law treats the duration of a person’s child support obligation as a “nonmodifiable” term. Because the term is “nonmodifiable,” and because the term originated from a Mississippi order, the father was required to continue paying child support until his obligated ended, as determined by Mississippi law.

Labeling the duration of a child support order as “nonmodifiable” is important because states have different rules regarding how long a person is obligated to pay support. In Minnesota, for example, a child support obligation typically ends when the child turns age 18, or age 20 if they are still in secondary school, whichever is later. Minn. Stat. § 518A.26, subd. 5 (2009). Parents do not pay child support while a child is in college. But, in Mississippi, the law obligates a parent to pay child support until the child turns age 21, with certain limited exceptions. The difference, which is three (3) years of after tax child support payments, can be substantial.

The case is Hennepin County v. Hill, 2010 WL 274651 (Minn. Ct. App. 2010).

by Robert W. Gadtke

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Travel Costs for Parenting Time

Wednesday, April 7th, 2010

When parents do not live close to each other, several issues can arise. The first and most obvious issue is developing a parenting time schedule that accounts for the distance between the parties. The more traditional type of parenting time schedule (i.e., every-other weekend and one night during the week) is not practical when there is a large distance between the parties. If, for example, the child lives in Minnesota and the noncustodial parent lives in California, it isn’t realistic (nor in the best interests of the child) for the child to fly across county every-other weekend. Depending upon the age of the child, a more realistic parenting time schedule may have the child spending extended time with the noncustodial parent during the summer months and during school breaks.
Assuming that a parenting time schedule can be agreed upon (or, if not, then that one is imposed by the Court), the parties must also deal with the issue of travel costs. Noncustodial parents often ask to have the custodial parent contribute to their travel costs. While a Court does have the discretion to order the custodial parent to pay a portion of the costs, this issue is approached on a case-by-case basis. Caselaw has observed that requiring the custodial parent to contribute to travel costs has the effect of reducing the amount of support available to the child, which can have an adverse effect upon the child. Generally, Courts are reluctant to order the custodial parent to contribute to travel costs if the travel issue arose because the noncustodial parent chose to move away. Courts can be more willing to divide travel costs, though, if the distance was created by the custodial parent’s decision to move away from Minnesota. Other factors, like the parties’ respective incomes and other financial circumstances, can also be considered.
Again, if the parties cannot agree, this issue will be resolved by the Court. There is no hard and fast rule. Still, whether you are the relocating or non-relocating party, it is something to be aware of and discuss with your attorney.

by Marcus P. Beyer

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Posted in Child Support | No Comments »

Out-of-State Moves

Sunday, March 14th, 2010

Occasionally, Marc Beyer and I will take the opportunity to present different legal perspectives on a particular issue. In most cases, the court could reasonably rule in favor of either party. Thus, it is essential for you to understand the arguments that might be made by opposing counsel.

This post focuses on whether a custodial parent, after a divorce, should be allowed to move out-of-state with the minor child. It responds to Marc Beyer’s post dated August 22, 2008.

Under Minnesota law, a custodial parent may not remove a minor child from the State of the Minnesota for the purpose of changing their residence unless they first obtain permission from the other parent or get a court order allowing the move. Minn. Stat. 518.175, subd. 3 (2008). If the purpose of the move is to interfere with the other parent’s parenting time, the court shall not permit the child’s residence to be moved to another state. Id.

In considering whether to grant a parent’s request to move, the court is required to apply a best interests analysis. In doing so, the court must consider the following factors:

(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.

Prior to 2006, noncustodial parents were required to prove that an out-of-state move was not in the best interests of the child. This could be tough to do. Courts resolved all doubts in favor of allowing the move. If you couldn’t prove that the move would be detrimental to your child, you couldn’t stop it.

In 2006, the legislature fundamentally altered the way courts approach requests for permission to move out-of-state. The burden of proof was shifted from the noncustodial parent to the custodial parent. In other words, the custodial parent now bears the burden of proving that an out-of-state move is in the best interests of the child. All doubts are resolved in favor of denying the move.

Different judges seem to require different amounts of evidence to satisfy the burden of proof for out-of-state moves. All things being equal, some judges allow custodial parents to move out-of-state if the custodial parent has a job offer in the other state. Some judges do not. Some judges require less evidence to move to Wisconsin. Some judges do not. Whether a parent is granted permission to move depends largely upon the particular judge assigned to your case.

In my opinion, judges should rarely grant the custodial parent permission to move. Underlying all custody and parenting time decisions is the idea that courts are supposed to act in the child’s best interests, not in a way that is convenient or fair to the parents. The likelihood that a child can sustain a meaningful and quality relationship with both parents after an out-of-state move is seriously diminished. A child’s right to stay connected with both parents should supersede a parent’s right to live with a new boyfriend or to accept a new job in a different state.

The decision to have a child is one that should not be taken lightly. If an individual has a child in the State of Minnesota, and if the other parent has developed a significant relationship with that child, the law should deem the custodial parent to have waived his or her right to make selfish decisions regarding his or her place of residence. To hold otherwise would not only encourage parents to fight about custody labels (if only to prevent a future move), but it would also cause irreparable damage to the child.

Presumably, these were the types of issues that the legislature sought to prevent with the 2006 statutory changes.

by Robert W. Gadtke

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Posted in Child Custody | No Comments »

After my divorce is finalized, can I move out-of-state with the kids?

Sunday, January 24th, 2010

No. You cannot move out-of-state with the children unless you either have permission from the other parent to do so or get a Court Order granting you permission to move. Many parents don’t know this. After all, it’s not like the custody police will stop you at the state line and ask for your permission slip. Parents who disobey the law, however, do so at the risk of having to return to Minnesota.

The Minnesota Supreme Court ruled on this issue in 1983. It held that there was a presumption in favor of allowing the custodial parent (i.e., the parent with whom the children reside) to move out-of-state, provided that the purpose of the move was not to interfere with the noncustodial parent’s parenting time. The Court explained that it did not want to meddle in the parenting decisions of the custodial parent. To prevent a move, the noncustodial parent was required to show that the move was not in the best interests of the children. This rule was referred to as the Auge presumption, after the case in which it was announced.

In 2006, the law changed dramatically on this issue. The legislature changed who bore the burden of proof. Now, the relocating / custodial parent bears the burden of proof. He/she must convince the Court that the proposed move is in the best interests of the children. By law, the Court must consider eight (8) factors in determining whether the proposed moved is in the child’s best interests.

These cases present the court with difficult decisions. It must balance the benefit that would presumably come to the relocating parent and the child from the proposed move with the damage that would also be caused to the relationship between the child and the noncustodial parent. There are no easy answers.

by Robert W. Gadtke

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Posted in Child Custody | No Comments »