Moving the Kids: What Would Solomon Do?

 
Legislation passed in the last session of the Minnesota Legislature has removed a longstanding presumption favoring the custodial parent in disputes regarding relocation of a dependent child out-of-state.  While the solution places custodial and noncustodial parents on a more equal footing, it requires the court to determine what serves the best interests of the child.

By Sheree Speer

The dilemma faced by King Solomon is one often faced by family court judges.  Two single women who lived together with their respective babies appeared before King Solomon after awaking one morning to find that one of their babies had died.  When asked to decide which of two women was the true mother of the child, King Solomon wisely declared “[d]ivide the living child in two, and give half to the one, and half to the other.”1  As the king suspected, the true mother offered to give the child to the other woman, rather than see her child die.  Her selfless act made it clear who was the real mother, and King Solomon awarded her the child.

In cases where a custodial parent seeks to relocate their child outside the state against the noncustodial parent’s wishes, judges and parents are faced with a decision similar to that faced by King Solomon.  Custodial parents in Minnesota have long benefited from an implicit statutory presumption which provides them a substantial advantage when seeking to relocate the child out of the state.   However, the 2006 Legislature passed legislation that removes that presumption and levels the playing field by requiring a best interest analysis to determine whether the child should be moved from the state.  The focus of this article is to examine the complexities of relocation cases and analyze how the amended statute seeks to alleviate the tension created in these most vexing situations for parents and judges alike.

The Knottiest of Problems

“Relocation cases … are among the knottiest problems facing family courts.”2  It is easy to understand the plight of the custodial parent, more often than not the mother.3  Consider the situation of Jacqueline Scott Sheid, a custodial mother living with her daughter in New York City.4  After her divorce, Ms. Sheid remarried and gave birth to a son.  When her new husband lost his job on Wall Street and was forced to take a job in California, Ms. Sheid’s exhusband refused to allow his daughter move away.  Forced to choose between her husband and son in California, and her daughter in New York, Ms. Sheid is now forced to divide her time between her families on opposite coasts, shuttling back and forth in order to spend time with both children.  She told the New York Times: “[T]hey are making me choose between my children.”5

Equally troubling is the plight of the noncustodial parent.  Fathers are taking a more active role in their children’s lives, and are less likely to settle for the standard every-other-weekend-one-night-a-week visitation schedule.  Moreover, it is becoming increasingly clear that children need both parents involved in their life for optimal growth and development.  The U.S. Department of Human Services offered this depressing report:

Judge Eugene Scanlon of the Allegheny County Common Pleas Court’s family division lamented the dilemma of the noncustodial parent in a relocation case: “A parent is being left behind, and life for those children and relationship with that parent will never be the same.  That’s the harsh reality of it.”7 

Minnesota’s Implicit Presumption

Under the former statute the custodial parent must first bring a motion to modify custody supported by accompanying affidavits.  If the noncustodial parent makes a prima facie showing that the move is not in the child’s best interests, or that the request for removal was intended to interfere with the noncustodial parent’s parenting time, the court will schedule an evidentiary hearing.  At the hearing, the noncustodial parent must prove by a preponderance of the evidence that the move would endanger the child’s physical and emotional well-being.

The presumption in favor of the custodial parent was not apparent on the face of the statute.  The presumption originated in the 1983 Minnesota Supreme Court opinion Auge v. Auge, 334 N.W.2d 393 (Minn. 1983).  Carol and Frank Auge were married in 1974.  In 1975, their son Frankie Jr. was born and in 1979 the couple divorced.  Ms. Auge commenced a relationship with Marc Berc, whose employment required that he work in Hawaii for six months each year.  Seeking to maintain her relationship with Mr. Berc, whom she married in 1983 and with whom she later had three children of their own, Ms. Auge requested permission to remove Frankie to Hawaii for six months.  Mr. Auge denied her request, and the matter landed in Ramsey County District Court.

The district court referee denied Ms. Auge’s request, stating “the child’s interests should not be subverted to the Petitioner’s and Mr. Berc’s desires to spend each winter in Hawaii.”8  The court listed its numerous concerns regarding the child’s interests.  Among them were the child’s special educational needs, and the fact that Mr. Berc and Ms. Auge were not yet married. 

The Supreme Court reversed, stating that the custodial parent is ultimately the best judge of the child’s best interest.

The Court was unabashed in its support of the custodial parent.  It explained that the Minnesota Legislature has not articulated the possible harmful effects of relocating a child and besides, any other nondivorced one- or two-parent family is free to make such decisions for their children without judicial interference.  The Court opined that a divorced custodial parent is equally capable of autonomous decision making, and should therefore be trusted to weigh the purported negative effects associated with relocating a child, subject to the limited right to object found in Minnesota Statutes §§518.18(a) (allowing custody modification upon showing of child endangerment) and 518.176 subd. 1 (allowing judicial supervision upon showing of child endangerment). 

Catalyst for Change

The Auge decision rattled many people, including legislators and fathers’ rights groups who felt the opinion unfairly prejudiced noncustodial parents.  The new presumption was considered by some as “among the most liberal in the nation,”10 “antiquated and anti-child,”11  and even the “most regressive of all [states] in that it not only puts the burden on non-custodial parents, it also forces that parent to prove endangerment.”12

In the years following Auge several legislative attempts were made to overturn or at least minimize the effects of the presumption.  The first meaningful change was made in the 2000 legislative session, when the parenting plan legislation was passed.  The resulting section 518.1705 includes a provision that allows parties to stipulate to a “best interest of the child” standard for any future motions to move the child’s residence out of state.13   It would be years later before the Legislature passed a bill directly overturning Auge.  After several failed attempts, the legislation eventually passed and was signed by the governor on May 31, 2006, and became effective August 1, 2006.

The Amended Statute

The amended statute requires courts to apply a “best interest” standard when considering a request to relocate a child out of state, and provides eight factors courts must consider, although courts may also consider other factors.14   These eight factors were promulgated by the American Association of Matrimonial Lawyers.15  Additionally, the statute explicitly states that the burden of proof is upon the parent requesting the move, except when the court finds that the person requesting permission to relocate has been a victim of domestic violence.  In that situation, the burden of proof shifts to the person opposing the move. 

More importantly, the noncustodial parent no longer must prove that the out-of-state relocation would endanger the child.  The noncustodial parent need only refute the custodial parent’s argument that the move is in the child’s best interest in order to prevent the relocation.  In short, it has become more difficult to relocate a child out of state, and courts have more latitude to determine whether relocations are allowed.

Each of the eight best-interest factors addresses a concern that arose at some point in the history of the legislation.  The first factor requires the court to closely examine the child’s relationship with each parent, siblings, and other people of influence in the child’s life.  This factor is critical to avoid situations where a noncustodial parent who has not maintained consistent or meaningful visitation opposes a motion to relocate simply to be combative or adversarial.  On the other hand, the factor also allows for consideration of the child’s relationships with extended relatives (e.g., grandparents, cousins, step-siblings) and friends, and is sensitive to the effects on a child’s well-being of maintaining relationships with these individuals and the noncustodial parent. 

The second factor requires the court to consider the child’s specific needs and circumstances: age; developmental stage; physical, educational and emotional development; and other “special needs.”  Query whether under this more sensitive regime the Auge case, which involved a child with special education needs, would have produced a more favorable result for the noncustodial father.

The third factor considers the practicality and logistics of long-distance relationships, especially on financial terms.  For many families, maintaining out-of-state visitation is simply infeasible due to the expense of air travel. 

The fourth factor directs the court to consider the child’s preference, taking into consideration the age and maturity of the child, and is a factor commonly considered when determining initial custody.

The fifth factor reinforces the requirement that the court not grant a motion to relocate if the purpose of the relocation is to interfere with the noncustodial parent’s parenting time.  This factor focuses on the custodial parent’s efforts to either promote or thwart the relationship of the child and the noncustodial parent.

Sixth, the court must consider whether relocating the child will enhance the “quality of life” for both the custodial parent and the child, including the financial, emotional, or economic benefits.  Similarly, the seventh factor examines each parent’s reasons for seeking or opposing the relocation.  Opponents of the legislation testified that their clients have no choice but to relocate for financial reasons, to seek a better life for themselves and their children.  These two factors allow the court to consider dire situations which might warrant relocation, while at the same time considering the noncustodial parent’s concerns and reasons for opposing the move.

The final factor governing the court’s decision is the effect of domestic abuse on either the child or the custodial parent. Often a custodial parent might seek to relocate to avoid an abuser.  This factor, along with the additional burden-shifting caveat for noncustodial domestic abusers, works to alleviate concerns that the noncustodial parent or the child might be unable to flee an abusive situation.

Omitted from the new legislation was a controversial mileage requirement.  Other states’ statutes have contemplated that moves within the state as well as out-of-state can be disruptive to the parent-child relationship.  For example, Iowa and Wisconsin statutes require a motion if the intended relocation is 150 miles or more.16  Opponents of the Minnesota legislation testified that the new language unfairly burdens parents who wish to relocate from, for example, Stillwater, Minnesota to Hudson, Wisconsin because a motion is still required to move out of state.  Proponents of the bill point out that, practically speaking, a noncustodial parent would be unlikely to oppose such a relocation because it would not materially alter the visitation schedule in place.  Additionally, in-state relocations, such as from Albert Lea to Hibbing, may not require a motion but still require a modification to the visitation schedule if the move results in a substantial change of circumstances.17

What Would Solomon Do?

Central to the wisdom of King Solomon’s proposal to “split the baby” was that the child’s true parent was ready and willing to sacrifice for the good of the child, putting the child’s needs above her own, while the other parent was ready to manipulate her compassion.  The Legislature has made a giant leap forward in relocation cases by removing the presumption in favor of custodial parents and shifting the burden of proof to the parent seeking to relocate.  However, both parents maintain the burden of sacrificing their interests for the best interest of their child.  Now both parents must recognize that their interactions with each other will directly influence the ongoing relationship they will have with their child in the future. 

Notes
1 1 Kings 3:28.

2 Nearly 85 percent of custodial parents are mothers.  Braver, S., Ellman, I., and Fabricius, W., “Relocation of Children After Divorce and Children’s Best Interests: New Evidence and Legal Considerations.”  Journal of Family Psychology: 17, 206-219 (2003).

3 Grall, Timothy S., Custodial Mothers and Fathers and Their Child Support: 2001.  U.S. Census Bureau, October 2003. Available at: http://www.census.gov/prod/2003pubs/p60-225.pdf

4 Eaton, Leslie, “Divorced Parents Move and Custody Gets Trickier.”  N. Y. Times. [updated 9 August 2004, cited September 11, 2006]  Available at: http://www.nytimes.com/learning/teachers/featured_articles/20040809monday.html  (Last accessed October 4, 2006).

5 Id.

6 HHS Launches “Be Their Dad” Parental Responsibility Campaign. U.S. Dept. Human Services News Release dated Friday, March 26, 1999 Available at: http://www.acf.hhs.gov/news/press/1999/fatherpsa.htm (Last accessed October 4, 2006).

7 Carpenter, Mackenzie, “Judges Face a Difficult Choice When Custodial Parent Wants to Move,” Pittsburgh Post-Gazette [Updated August 3, 2003, cited August 9, 2006] Available at: http://www.postgazette.com/localnews/20030803relocation0803p2.asp (Last accessed October 4, 2006).

8 Order of the Hon. Gerald E. Rutman dated July 14, 1982, Ramsey County District Court File No. 425417.

9 Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983) quoting Note, “Residence Restrictions on Custodial Parents: Implications for the Right to Travel,” 12 Rutgers L.J. 341, 363 (1981).

10 Oliphant, Robert, “Minnesota’s Custody Relocation Doctrine: Is There a Need for a Change?” 28 Wm. Mitchell L. Rev. 723, 738 (2001).

11 “Family Law Bills, 2003: Hearings on SF 266 Before the Senate Judiciary Family Subcommittee,” 84th Leg., 2003 Reg. Sess., Tape 1, Side A (February 25, 2003) (statement by Mike Dittberner).

12 Id.

13 Minn. Stat. §518.1705 subd. 7 (2005).

14 Minn. Stat. §518.175 subd. 3 (2006).

15 “Family Law Bills, 2003: Hearings on SF 266 Before the Senate Judiciary Family Subcommittee,” 84th Leg., 2003 Reg. Sess., Tape 1, Side A (February 25, 2003) (statement by Mike Dittberner).

16 See Iowa Code §598.21D (2005), Wisc. Stat. §767.327 (2005).

17 See Minn. Stat. §518.18(d).

SHEREE SPEER is an attorney in the Minnesota Office of the Revisor of Statutes and a 2004 graduate of the University of Minnesota Law School.  The views expressed in this article are entirely those of the author and do not reflect the views of the Minnesota Office of the Revisor of Statutes.