Minnesota Divorce and Family Law Blog

Moving Out of State With the Children

When one parent wants to move out of state, with the children, a dispute often erupts because of the other parent's opposition to such a big change for the kids.  In most states, if a parent wants to move the residence of the children to another state, the burden of proving the merits of the move to the court lies with the parenting desiring to move. 

Until recently, Minnesota was in the minority: making the non-moving parent prove that the move is a BAD idea.  Legislation in 2006 brought Minnesota in line with the majority of jurisdictions, placing the burden of proof on the parent petitioning to change the children's state of residence. 

The fact is, in many cases, the difference in the laws does not make a difference in the outcome of the case.  Many proposed moves would be approved by the court, regardless of which parent has the burden of proof.  Conversely, many proposed moves would be denied, either way.  However, if each parent has a solid basis for their position on the issue, and the case is a "close call," the change in law can have an impact on whether or not the children are allowed to move.  

When parenting neutrals are appointed to make recommendations on out-of-state moves, they are required to base their recommendations on what is in the child's best interests (not on what might be in the best interests of one of the parents).  Under the previous law, the parenting neutrals would consider primarily whether there were drawbacks to the move and whether the purpose of the move was to interfere with the other parent's relationship with the child.  Now, the focus is on whether the move is compelling enough, from the standpoint of the child, to be worth the upheaval involved in the move.  

Another recent development is the court order that makes a parent's custody conditional on the parent remaining in Minnesota.  A parent is free to move where they please, but that does not go for the child too.  There is a growing incidence of the court awarding custody of the children to one of the parents, subject to the provision that if that parent decides to move out of Minnesota, custody would be transferred to the parent remaining in Minnesota.  

Why Mediation Is a Good Idea

Family law mediation is a forum in which a neutral party (the mediator) meets with parties to help facilitate a settlement of the disputed issues or, in the alternative, to rule out settlement exhaustively, and help the parties reach an impasse.  The mediator has no authority to make a decision or impose something upon one of the parties against their will; and the process is confidential.

There are three basic reasons that family law mediation is a good idea.  (Only one has to do with settling the case short of trial in family court.)  First, if the mediator is successful in facilitating a resolution, the case concludes without protracted litigation.  Second, most family court judges will insist that there be efforts to settle the case out of court before proceeding with trial.  Third, it is a helpful trial preparation tool. 

It is important to note that the latter two reasons are applicable if mediation is unsuccessful, that there is more to proceeding with mediation than getting the case settled.  If you appear before the family court for trial, you are likely to be in better standing with the family court judge if the judge knows that the court's decision is necessary, and the dispute is compelling enough not to have been resolved in mediation. The impasse reached in mediation is more meaningful than the impasse reached when a couple with communication problems stops speaking to each other.  

Finally, for purposes of trial preparation, mediation allows the courtroom disputes to be narrowed, and more sharply defined.  The confidential communications, while inadmissible in court, do provide some insight about the strengths and weaknesses of your case and the opposing party's case.  The family court judge who decides the case is likely to navigate through similar logic, questions and considerations that play out in the mediation sessions.  The trial of a case in which mediate was unsuccessfully attempted is more effective for the parties and the court than a trial proceeding that transpires from "square one."  

 

  

Financial Attrition

The goal of family courts is to render court orders (or approve parties' stipulations) that address a child's best interests (regarding custody and parenting time) or a fair and equitable settlement (regarding property and finances).  In the process of a family law dispute, one would like to think that both sides have a solid basis for their arguments, and that if the dispute persists through the court process, that it is the result of good faith and meritorious claims.  Or, if the dispute does not persist through a contested court process, that it has to do with one party having a clearly stronger claim as to the child's best interests, or what is fair and equitable in the circumstances.  

Unfortunately, in some instances, the outcome of the dispute is based on something that is not connected to a child's best interests or what is fair and equitable.  Instead it is based on financial attrition.  That is, on one party having the financial means to pursue the dispute, regardless of the merits of that party's position, while the other party lacks the means to advance their argument.  If one party has the funds to hire an attorney to proceed in the dispute (with or without a solid basis on the merits) and the other party does not, the result will not necessarily be proper justice.

As an example, if a parenting neutral recommends a certainly custody arrangement or parenting plan, and one of the parties is aggrieved by that recommendation, that party may hire a custody expert to contest the neutral recommendations.  Usually, a party cannot do that without substantial financial investment.  Oftentimes, when someone challenges neutral recommendations, while they may have the financial means to hire the expert, the facts and circumstances do not warrant overturning the neutral recommendations.  Yet, the party favored by the recommendations may lack the financial means to defend against the challenge of the aggrieved party.  The outcome of the dispute may be different from what is truly in the child's best interests, simply because one party had funds to fight, and other party did not.   

There is an "up" side to financial attrition, as well.  Someone who lacks a good-faith argument for their position, but also lacks the means to advance the argument, is foreclosed from manipulating the court process to gain unfair advantage.  

What makes the issue of financial attrition even more complex is this: sometimes an argument clearly has good faith, or clearly LACKS good faith, but other times, it is not so clear.  And someone may think their opponent is acting in bad faith, but the family court judge sees it differently.  Also, oftentimes, it is clear that one party has substantially greater means than the other; but not always.  (Someone with multimillionaire parents theoretically has the means to invest substantial sums in a family court dispute, but not if the parents are unwilling to contribute to the effort.)  Even less clear is whether the party with greater means has a misguided agenda (as opposed to an argument based upon genuine good faith).    

In the end, financial attrition may be in the eye of the beholder.  Whether real or perceived, it is an unwelcome factor in the family court process.