Can I File for Custody in Minnesota if the Other Parent Moved Out of State?
Do you live in Minnesota? Has your child’s other parent moved the residence of your child to another state? Do you want to establish custody and parenting time with your child? If so, an important question that must be determined is whether or not a Minnesota Court has jurisdiction to make custody determinations regarding your child.
The “Home State” Test
A Minnesota court only has jurisdiction to make an initial child custody determination if one of few circumstances are true. First, if Minnesota is the “home state” of the child, the Minnesota Court will have jurisdiction to determine the child’s custody status. A child’s “home state” is the state in which the child lived with a parent (or person acting as a parent) for at least six straight months prior to starting a child custody case. If the child is less than six months old, the time in which the child must have lived in Minnesota is from birth to the present date. A temporary absence or vacation from Minnesota does not mean Minnesota courts lose jurisdiction.
A Minnesota court will also have jurisdiction to determine the custody status of a child if Minnesota was the child’s home state within the past six months and the child is absent from Minnesota, but a parent (or person acting as a parent) continues to live in Minnesota. This becomes important when one parent flees from the State of Minnesota with the child and the other parent wants to commence a custody proceeding in Minnesota to ensure the child is returned to his or her home state.
The ”Significant Connection Test”
Moreover, if the child does not have a home state (he or she has not lived in any individual state for at least six consecutive months), Minnesota may decide the child’s custody status if the child and the child’s parents (or the child and at least one parent) have a significant connection with Minnesota other than merely being physically present in Minnesota, and substantial evidence is available in Minnesota concerning the child’s care, protection, training, and personal relationships.
In a specific dissolution of marriage case where a minor child had not resided in any state for at least six consecutive months prior to the commencement of the proceeding, the attorneys at RAM Law PLLC, recognizing that jurisdiction may be an issue, convinced the Court that the minor child and the Petitioner had a significant connection with the State of Minnesota and substantial evidence was available in Minnesota concerning the child’s care, protection, training and personal relationships. Specifically, because the child had lived in Minnesota for most of his life, was enrolled in school in Minnesota during the past six months, received extensive care and treatment for mental health in Minnesota, had many friends and relatives in Minnesota, and Petitioner lived in Minnesota, the Court agreed that Minnesota had jurisdiction to determine the child’s custody status.
Exclusive, Continuing Jurisdiction
Once a court has jurisdiction to make a custody determination and, subsequently, makes such a determination, that state court has exclusive, continuing jurisdiction over the child’s custody status, which means that future motions to modify custody may be heard in that state. However, if a court later determines that the parents or child do not reside in Minnesota or do not have a significant connection with Minnesota, the Minnesota court may lose jurisdiction over the child.
Temporary Emergency Jurisdiction
If a child is present in Minnesota and has been abandoned, or an emergency arises making it necessary to protect the child due to threatened mistreatment or abuse, a Minnesota court may exercise temporary emergency jurisdiction to protect the child. If there has been no previous custody determination (in any other state), and a child custody proceeding has not been started, a Minnesota court exercising temporary emergency jurisdiction may determine a child’s custody status, until a court with “home state” or “significant connection” jurisdiction later makes a determination regarding the child’s custody status. If, however, a Minnesota court with temporary emergency jurisdiction makes a child custody determination and determines that Minnesota will become the “home state” of the child, such a determination may become a final determination (rather than just a temporary one).
If, on the other hand, there is a previous child custody determination from a court of another state, an order issued by a Minnesota court with temporary emergency jurisdiction must specify a period of time that the court believes to be adequate to allow the person seeking an order from Minnesota to obtain an order from the state with continuing and exclusive jurisdiction. The Minnesota order will expire once an order is obtained from the other state.
Inconvenient Court
A Minnesota Court, while otherwise having jurisdiction to determine a child’s custody status, may decide that it is more appropriate for the court in another state to hear the matter. When determining whether it is more appropriate for another court to decide the custody issues, the Minnesota court will consider the following:
Whether domestic abuse has occurred, is likely to continue, and which state could best protect the parties and the child;
The length of time the child has lived outside of Minnesota;
The distance between the Minnesota court and the court in the other state;
The financial circumstances of the parties;
Any agreement of the parties regarding the most appropriate court;
The nature and location of the evidence, including testimony of the child;
The ability of the courts in both states to resolve the dispute; and
The familiarity of the courts in both states with the facts of the case.
Importantly, in divorce cases, a court may decline to exercise jurisdiction over a child’s custody status while still retaining jurisdiction over the rest of the divorce case.
Conclusion
If you want to file for custody of your child in Minnesota, the first question you must ask is whether or not the Minnesota court has jurisdiction to make such a determination. The answer to this question is easy if both parents and the child have lived in Minnesota for the child’s entire life. However, in situations where the child has moved around a lot and has spent different amounts of time in multiple different states, it can be more technical and confusing to determine which court has jurisdiction. If your child’s other parent moved your child to another state five months ago, it is important to know that you must act quick, as the Minnesota court is dangerously close to losing jurisdiction over the child. Once a child has lived in the other state for six straight months, you can no longer file a child custody petition in Minnesota.
The above-referenced laws are set forth in the Uniform Child Custody Jurisdiction and Enforcement Act. The attorneys at RAM Law PLLC are well-versed in this act and are well-equipped to make the most persuasive arguments to the Judge regarding child custody jurisdiction. If you are in the middle of a child custody case (or are thinking about filing a case) that involves multiple states, it is extremely important that you contact an experienced interstate child custody attorney so the case does not get dismissed based on a lack of subject matter jurisdiction.
Contact the interstate child custody and parental kidnapping attorneys at RAM Law PLLC to schedule your free initial consultation.