A husband and wife have three small children in common. A divorce was granted recently. The wife received sole legal and physical custody with the husband’s parenting time reserved pending the outcome of a criminal case. The husband was just convicted of Criminal Sexual Conduct in the 1st degree against the wife’s fourth child and is now serving one year in county jail as a predatory sex offender with 30 years’ probation. He cannot currently leave the state without permission of a corrections agent.
The wife wants to know if she can relocate to another state as soon as possible. Is this a possibility? For instance, does the husband's parenting time need to be determined before she relocates out of state? If she does relocate, could the husband force her or her children to come back? What if the wife leaves and the husband does nothing for 180 days or more?
As a side issue, the father of the fourth child wants parenting time with that child, but has not yet pursued his parenting time rights through the court. Could he prevent the wife from relocating or cause the fourth child to remain behind?
Look at Minnesota Statute 518.175 Subdivision 3, Minnesota Statute 518.1795 Subdivision 7, and Minnesota Statute 518.179.
Also, see the Greenwood case A06-1110. This case established that it is a high standard to convince the court that a move out of state is in the best interests of the children when the move will make it very hard for a parent (or in this case parents) to have contact with the child or children.
The wife should bring the motion, but in practice there is little chance that the court will deny her right right to move the sex offender’s children. The court will reference his parenting time, but probably do something like reserve the parenting time until he is released from prison.
In relation to the other father, the answer to this question may depend on whether there is a custody order of any kind currently in place. If not, the only way that father could prevent the wife from leaving is by getting an ex-parte order, which is possible for him to do. That is dependent on the facts of the case but sounds unlikely in this case.
This complicates this case. If the wife leaves the state without having a custody order with parenting time established with the fourth child, the wife runs the risk of being ordered back to the state if and when the second father brings a claim. It would be good to advise the wife to try to work something out with the second father and try to enter a court order by agreement of the parties. If the father is aware of this child but has never sought to establish rights or a court order for parenting time, that does not look good for the father. What was his contact with the child in the past? What does his background and life circumstances look like? Even if all of these factors are favorable for a move, it is still best to advise the wife to try to work something out with the second father in the form of a court order. If the second father will not enter an agreement, the wife should petition for custody and parenting time of the fourth child and ask permission to leave the state. It would be favorable for her to be the moving party on this petition. It would be a very risky move on the part of the wife to leave without a court order and hope that the second father does not go to court.
In practice, the wife has a strong case to move out of state, but, as addressed above, the second father could complicate matters. Advise the client to explain where she is moving and why. The reasons need to go beyond what happened to one of the children at the hands of the stepfather. She needs to establish where she will work, what her income will be and how she will pay for housing and other necessities, and whether she will have a support network where she is going,. The wife needs to have solid reasons for every aspect of her plan.
The wife needs to explain why the three children in common need to make the move when the victim of the sexual conduct was the fourth child. This would not be a hard case to make, but it is a case that needs to be made in order for the wife to be successful on her motion.
Normally, the parent who wishes to leave the state has the burden of showing that the move out of state is in the best interests of the children. In this case, the facts described fit Minnesota Statute 518.179- Parenting Plan When Person Convicted of Certain Offenses. If the ex-husband seeks parenting time, he has a conviction for criminal sexual conduct in the 1st degree, an applicable crime, the conviction was within the preceding five years, the person is currently incarcerated, and the victim was a family or household member. If this statute applies, the court may not grant parenting time to the parent with the conviction for the applicable crime unless the court finds that custody or parenting time is in the best interests of the child. The burden is upon the ex-husband to make that showing.
One thing to keep in mind is that the ex-husband is a strong candidate for commitment as a sexually dangerous person. Even though his sentence for the criminal offense will be completed soon, he could be civilly committed and be sent to another secure facility for treatment for a long period of time.
Even though the child is an innocent victim and the mother is not the perpetrator, in practice mothers in these situations get judged harshly by social workers and judges for not doing enough to protect their children from harm.
Because there are very specific statutes for moves out of state with children, and because custodial parents can sometimes be blamed when harm comes to their children, it is good advice to make sure the wife seeks and receives a court order granting her permission to move out of state.