Getting Court Permission to Relocate to Another State, Separating Children from a Noncustodial Parent, Can Be Difficult
In Lee v. Holter, A12-2011 (Minn. Ct. App. Nov. 4, 2013), the Minnesota Court of Appeals held that the district court is not required to hold an evidentiary hearing before ruling on a motion for a parent to relocate to another state under Minn. Stat. 518.175(3)(2013) when no party has made a timely request for such a hearing. In this case, the divorce decree provides that neither party could remove the children from Minnesota without court approval or permission of the other parent. The parties had joint legal custody, and the mother, who sought to move to California, had sole physical custody of the two minor children, with the father having parenting (visitation) time on alternating week-ends and Wednesday overnight.
The court held that the neither statutory provision governing motions for court approval of out-of-state moves nor the family court rules require an evidentiary hearing. Further, the Family Court rules presume that such motions will be submitted on affidavits, exhibits, subpoenaed documents, memoranda, and counsels’ arguments. Minn. R. Gen. Pract. 303.03(d)(1). The rules require that parties make request for oral testimony by motion before or with the filing of the motion. In this case, there was no evidence that the mother had ever requested an evidentiary hearing. The court noted that a request for oral testimony must include the names of witnesses as well as the nature and expected length of testimony.
The court also found the district court did not err in denying the motion for removal. The court noted that the burden of proof in removal cases is on the parent seeking relocation. The court analyzed the eight factors used to determine whether removal is in the best interests of the child:
- The child’s relationship with parents and others. In this case, the court determined that the father attends school functions, helps the children with their school work, calls them daily, and has 30% parenting time. The court also noted that the children frequently see their father’s family members who live in parent. Minnesota, and they visited their mother’s family in California twice a year.
- The children’s developmental and needs. The court held the children did not have any special physical or educational needs.
- The feasibility of preserving the children’s relationship with the non-relocating parent. The court held that although the mother’s proposal, with the children with their mother during the school year and with the father during the summer and other extended school vacations, would result in a small change in the total number of days with the father, it would significantly harm the children’s relationship with the father, as he would not be able to see the children frequently or attend their school and extracurricular activities.
- The children’s preference. Here, there was no dispute that the children were too young to express a preference.
- The court held the relocating parent did not have a pattern of promoting or thwarting the children’s relationship with the other parent.
- The relocation would enhance the quality of life of the children and the relocating parent. Here, the court held it was not clearly erroneous for the district court to reply on published unemployment statistics, indicating that the unemployment rate was lower in Minneapolis than in the intended relocation city, San Diego than to the mother’s affidavit stating that her employment prospect were greater in California. Further, because the children were doing well in school, the court held the district court court’s finding that the children did not have more favorable educational opportunities in California. The court also held that the district court’s failure to address the children’s greater exposure to Vietnamese culture in San Diego did not make its findings clearly erroneous, noting that the children did have the opportunity to visit their Vietnamese family members while living in Minneapolis.
- Each parent’s reason for opposing or supporting relocation. Here, the court held that district court’s findings, that the mother’s primary reason for moving to California was to be closer to her family members while the father opposed the move because it would reduce his time and regular interaction with his children, were not clearly erroneous.
- The safety and welfare of the children or the relocating parent. This factor did not apply as there was no evidence of domestic abuse.
Any parent who has a child custody agreement and seeks to relocate to another state, or who opposes another parent’s move to another state, should consult an experienced family law attorney.
Adoption and the Indian Child Welfare Act
The United States Supreme Court rejected a Native American father’s effort to block adoption of his daughter by non-Native Americans under the Indian Welfare Act this past June, Adoptive Couple v. Baby Girl, 398 S. Ct. 625 (2013). This case may have significant ramifications for non-Native Americans seeking to adopt children, particularly newborns, who are of Native-American descent.
In this case, the biological parents broke up while the mother was pregnant, and, when the mother sent a text message asking whether the father wanted to pay child support or give up his paternal rights, he texted back that he relinquished his parental rights. Further, he did not provide any financial support before the child’s birth and for the first four months of her life even though he had funds to do so. The biological mother then worked with a private adoption agency to find adoptive parents for the child. The parents were found well before the child was born, and they were present at the delivery and commenced adoption proceedings shortly afterward. Although the father initially signed the adoption papers, the next day he contacted lawyer and requested that the adoption be stayed.
The Court held that the statutory provision in question, 25 U.S.C. Section 1912(f), bars involuntary termination of a parent’s rights in the absence of a showing that serious harm to the child is likely to result from the parent’s “continued custody” of the child. The Court found that this provision did not apply because the father never had custody of the child. The court held that 25 U.S.C. Section 1912(d), which provides that remedial efforts to prevent “the breakup of the Indian family” does not apply when the Native American parent abandoned the child before birth and never had custody of the child. The court further clarified that the statutory preference for adoption of Native American children by Native American parents, 25 U.S.C. Section 1915 (2012), does not bar a non-Native American family from adopting a Native American child when “no other eligible candidates have sought to adopt the child.” The court noted that the father did not seek to adopt the child. Justice Alito wrote the opinion, and he was joined by Chief Justice Roberts, and Justices Kennedy, Thomas, and Breyer. Justice Scalia wrote his own dissenting opinion, and Justice Sotomayor wrote a dissention opinion joined by Justices Ginsburg and Kagan, and, in part, by Justice Scalia.
In his concurring opinion, Justice Thomas explained his position that there is no constitutional basis for Congress to assert authority of adoption proceedings, as such proceedings do not involve commerce or Indian tribes. He joined the majority opinion as its “plausible interpretation” of the statute avoided these constitutional problems.
Justice Breyer offered his observations in his concurring opinion, appeared concerned concern that the opinion could apply to any father of a newborn baby, and he suggested that the opinion could be limited to its specific facts. He also suggested that a parent who opposes an adoption could also come forward as seeking to adopt the child, thus falling in the statutory preference for adoption by Native Americans.
Justice Scalia, in his dissent, opined that “continued custody” includes custody in the future and that the majority opinion “needlessly demeans the rights of parenthood.” In her opinion, Justice Sotomayor notes that the majority’s concern that the statute, if interpreted to bar the adoption at issue, would make it more difficult to place Indian children for adoption is, at heart, a policy disagreement with Congress’s judgment that the trend of placing Indian children in non-Indian homes should be stopped.
If you are planning on adopting a child of Native American descent, or if you are a Native American seeking to oppose an adoption, you should consult an experienced family law attorney.