Can I Move the Children to Another State While the Divorce is Pending?
Full Question:
Answer:
Removing the children to another state may impact a custody determination, depending on all the facts and circumstanes involved. A custody determination is made based upon the best interests of the child. Some of the factors, among others, that may be considered by the court include the other parent's consent, the child's wishes, the interruption to the child's schooling, the family ties to relatives in the home state, and the ability of the other parent to visit the child in the new state.
Please see the following MN statutes:
609.26 Depriving Another of Custodial Or Parental Rights.
Subdivision 1. Prohibited acts. Whoever intentionally
does any of the following acts may be charged with a felony
and, upon conviction, may be sentenced as provided in
subdivision 6:
(1) conceals a minor child from the child's parent where the
action manifests an intent substantially to deprive that
parent of parental rights or conceals a minor child from
another person having the right to parenting time or custody
where the action manifests an intent to substantially
deprive that person of rights to parenting time or custody;
(2) takes, obtains, retains, or fails to return a minor
child in violation of a court order which has transferred
legal custody under chapter 260, 260B, or 260C to the
commissioner of human services, a child-placing agency, or
the local social services agency;
(3) takes, obtains, retains, or fails to return a minor
child from or to the parent in violation of a court order,
where the action manifests an intent substantially to
deprive that parent of rights to parenting time or custody;
(4) takes, obtains, retains, or fails to return a minor
child from or to a parent after commencement of an action
relating to child parenting time or custody but prior to the
issuance of an order determining custody or parenting time
rights, where the action manifests an intent substantially
to deprive that parent of parental rights;
(5) retains a child in this state with the knowledge that
the child was removed from another state in violation of any
of the above provisions;
(6) refuses to return a minor child to a parent or lawful
custodian and is at least 18 years old and more than 24
months older than the child;
(7) causes or contributes to a child being a habitual truant
as defined in section 260C.007, subdivision 19, and is at
least 18 years old and more than 24 months older than the
child;
(8) causes or contributes to a child being a runaway as
defined in section 260C.007, subdivision 28, and is at least
18 years old and more than 24 months older than the child;
or
(9) is at least 18 years old and resides with a minor under
the age of 16 without the consent of the minor's parent or
lawful custodian.
Subd. 2. Defenses. It is an affirmative defense if a
person charged under subdivision 1 proves that:
(1) the person reasonably believed the action taken was
necessary to protect the child from physical or sexual
assault or substantial emotional harm;
(2) the person reasonably believed the action taken was
necessary to protect the person taking the action from
physical or sexual assault;
(3) the action taken is consented to by the parent,
stepparent, or legal custodian seeking prosecution, but
consent to custody or specific parenting time is not consent
to the action of failing to return or concealing a minor
child; or
(4) the action taken is otherwise authorized by a court
order issued prior to the violation of subdivision 1.
The defenses provided in this subdivision are in addition to
and do not limit other defenses available under this
chapter or chapter 611.
Subd. 2a. Original intent clarified. To the extent
that it states that subdivision 2 creates affirmative
defenses to a charge under this section, subdivision 2
clarifies the original intent of the legislature in enacting
Laws 1984, chapter 484, section 2, and does not change the
substance of this section. Subdivision 2 does not modify or
alter any convictions entered under this section before
August 1, 1988.
Subd. 3. Venue. A person who violates this section may
be prosecuted and tried either in the county in which the
child was taken, concealed, or detained or in the county of
lawful residence of the child.
Subd. 4. Return of child; costs. A child who has been
concealed, obtained, or retained in violation of this
section shall be returned to the person having lawful custody of the
child or shall be taken into custody pursuant to
section 260C.175, subdivision 1, clause (2), item (ii). In
addition to any sentence imposed, the court may assess any
expense incurred in returning the child against any person
convicted of violating this section. The court may direct the
appropriate county welfare agency to provide counseling
services to a child who has been returned pursuant to this
subdivision.
Subd. 5. Dismissal of charge. A felony charge brought
under this section shall be dismissed if:
(a) the person voluntarily returns the child within 48 hours
after taking, detaining, or failing to return the child in
violation of this section; or
(b)(1) the person taking the action and the child have not
left the state of Minnesota; and (2) within a period of
seven days after taking the action, (i) a motion or
proceeding under chapter 518, 518A, 518B, 518C, or 518D is
commenced by the person taking the action, or (ii) the
attorney representing the person taking the action has
consented to service of process by the party whose rights
are being deprived, for any motion or action pursuant to
chapter 518, 518A, 518B, 518C, or 518D.
Clause (a) does not apply if the person returns the child as
a result of being located by law enforcement authorities.
This subdivision does not prohibit the filing of felony
charges or an offense report before the expiration of the 48
hours.
Subd. 6. Penalty. (a) Except as otherwise provided in
paragraph (b) and subdivision 5, whoever violates this
section may be sentenced as follows:
(1) to imprisonment for not more than two years or to
payment of a fine of not more than $4,000, or both; or
(2) to imprisonment for not more than four years or to
payment of a fine of not more than $8,000, or both, if the
court finds that:
(i) the defendant committed the violation while possessing a
dangerous weapon or caused substantial bodily harm to effect
the taking;
(ii) the defendant abused or neglected the child during the
concealment, detention, or removal of the child;
(iii) the defendant inflicted or threatened to inflict
physical harm on a parent or lawful custodian of the child
or on the child with intent to cause the parent or lawful
custodian to discontinue criminal prosecution;
(iv) the defendant demanded payment in exchange for return
of the child or demanded to be relieved of the financial or
legal obligation to support the child in exchange for return
of the child; or
(v) the defendant has previously been convicted under this
section or a similar statute of another jurisdiction.
(b) A violation of subdivision 1, clause (7), is a gross
misdemeanor. The county attorney shall prosecute violations
of subdivision 1, clause (7).
Subd. 7. Reporting of deprivation of parental rights.
Any violation of this section shall be reported pursuant to
section 626.556, subdivision 3a.
609.25 Kidnapping.
Subdivision 1. Acts constituting. Whoever, for any
of the following purposes, confines or removes from one
place to another, any person without the person's consent
or, if the person is under the age of 16 years, without the
consent of the person's parents or other legal custodian, is
guilty of kidnapping and may be sentenced as provided in
subdivision 2:
(1) to hold for ransom or reward for release, or as shield
or hostage; or
(2) to facilitate commission of any felony or flight
thereafter; or
(3) to commit great bodily harm or to terrorize the victim
or another; or
(4) to hold in involuntary servitude.
Subd. 2. Sentence. Whoever violates subdivision 1 may
be sentenced as follows:
(1) if the victim is released in a safe place without great
bodily harm, to imprisonment for not more than 20 years or
to payment of a fine of not more than $35,000, or both; or
(2) if the victim is not released in a safe place, or if the
victim suffers great bodily harm during the course of the
kidnapping, or if the person kidnapped is under the age of
16, to imprisonment for not more than 40 years or to payment
of a fine of not more than $50,000, or both.
