The Minnesota Court of Appeals recently held that an evidentiary hearing (trial) is not necessary when the district court addresses whether the custodial parent can move children out of state. This issue typically appears after a divorce or custody matter wherein the non-custodial parent has court ordered parenting time and the custodial parent wants to move out of Minnesota.

Anh Phuong Le v. Holter, 838 N.W.2d 797 (Minn. App. 2013).

Le and Holter were married in 2001 and in 2009 they were divorced. The parties were granted joint legal custody and Le was granted sole physical custody. Holter had parenting time every other weekend and one overnight during the week.

On July 16, 2012 Le filed a motion to move the children out of state to California, or in the alternative, to order Hennepin County Family Court Services to perform a custody evaluation. On July 27, 2012 Holter filed a responsive motion requesting that Le’s motion be denied. On July 30, 2012 both parties and their respective attorneys appeared for a hearing during which the attorneys argued for and against Le’s motion to move the children. Neither party called witnesses.

In her affidavit, Le claimed that she was struggling to find employment in Minnesota, her unemployment was expiring soon, her chances to find employment would be better in California, and that living near her family would benefit the children by exposing them to the Vietnamese culture. The district court denied her motion finding that she had not met her burden of proof that it was in the children’s best interests to move to California. The district court addressed each of the eight factors listed in Minn. Stat. § 518.175, subd. 3(b) (2012). Le appealed claiming that the district court was required to hold an evidentiary hearing before ruling on the merits.

The Court of Appeals affirmed the district court citing that the statute does not impose a requirement for the district courts to hold evidentiary hearings for a removal out of state. Furthermore, pursuant to the Rules of Family Court as set forth in the Minnesota Rules of General Practice 301.01(a), (b)(1), (2), and (8) it is “presumed that non-contempt motions will be submitted on affidavits, exhibits, subpoenaed documents, memoranda, and arguments of counsel.” Requests for oral testimony must be remitted to the court prior to the motion hearing.

In this case, Le (and Holter) never requested an evidentiary hearing and the rules permit a hearing based solely on affidavits and oral arguments. Le argued that based on case law the district court must conduct an evidentiary hearing once the court finds there is a prima facie case for moving out of state. This reasoning; however, is based on custody modifications which is a different statute than the move out of state statute.

The moral of the story? Whether motioning to move children out of state or responding to such a motion, make sure the affidavits are thorough and contain all evidence that substantiates that it is in the children’s best interests to move.

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