Relocation of 6 Year Old Child Out of State Permitted and Child’s Preference Considered

In S.M.K.v.D.M.K.,A14-1070(Minn..App.March 2 2015) the court appeals affirmed a trial court decision permitting a mother to move and relocate the parties’ six year old child to Florida. The Court analyzed all the factors in Minnesota Statute 518.175,subd.3, and ruled the trial court did not abuse its discretion in finding the move was in the child’s best interest.

The father claimed it was ,in part, error to consider the six year old child’s desire to move to Florida.The court accepted mother’s assertion  that although the child is a young age, he has expressed a desire to move to Florida and understands he will see his father less, but wishes to continue to live with his mother and maternal grandparents. Father claimed it was error to accept mother’s claim without any inquiry due to possible manipulation by the mother. The Court of Appeals affirmed the trial court and accepted its finding that there was no evidence in the record to support that the minor child cannot comprehend the meaning of the move to Florida.

The court cited to Peterson v. Peterson, 394 N.W.2d 586,588(Minn.App.1986)(court accepts trial court’s ruling that a seven-year-old child could express a custodial preference)rev. denied(Minn.1986).

The court also rejected Father’s argument that the trial court erred by not awarding him 25% of parenting time, which is the minimum rebuttable presumption under Minnesota Statute 518.175,subd.1(g)(2014). Father claimed the court made no finding why 51 days a year is in the best interests of the child when he should have received 91 days a year. The court found since that argument was raised for the first time in the Motion for Amended Findings it was not properly before the court and the trial court acted within its extensive discretion in granting parenting time less than 25%.

Lastly father claimed the trial court court erred in making the parenting time subject to be agreed upon by the parties without a specific schedule,claiming this would be a cruel joke to try to work out the details of the parenting time, subject to the whim of the mother.The court noted to the extent practicable a court must include a specific schedule for parenting time,including the frequency and duration of visitation and visitation during holidays and vacations as required by Minnesota Statutes 518.175, subd.1(e)(2014).

The trial court ordered two periods of two weeks during the summer months as agreed upon by the parties,one week during the child’s winter break,every spring break,every other Thanksgiving and Christmas holiday, and two of the child’s long weekend breaks from school as set forth in the school calendar, as well as such other parenting time as mutually agreed upon. The Court of Appeals affirmed this schedule noting the father did not propose a specific parenting time schedule to the court and that if there were problems or issues he could seek relief from the trial court, and the schedule  was not an abuse of discretion.