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Modern Family: Relocation in the context of tri-parenting

In recent years, the law concerning tri-parenting has started taking shape. The Minnesota Court of Appeals recently addressed the issue of out-of-state relocation in the context of a three-parent arrangement. The October 3, 2022 decision in In re the Matter of Canaday v. Candady and Hogen is a roller coaster read.

Mother #1, Mother #2 and Father were the adjudicated parents of a 6-year-old Daughter. Daughter is the biological child of Mother #2 and Father, but Father was married to Mother #1 when Daughter was born.

For reasons relevant to the law of the case, the opinion notes that Mother #2 is Black and Mother #1 is Caucasian.  Mother #2 has a history of struggling with drug and alcohol abuse and plead guilty to domestic assault against Mother #1 in 2015.

Mother #1 also secured an order for protection against Mother #2 as a result of being slapped, pushed and threatened by Mother #2. Daughter was conceived around the time that Mother #2 engaged in acts of domestic abuse.

Daughter was born in 2016 with THC in her system. Three months after Daughter’s birth, Mother #2 threatened to kill Daughter through a text message sent to Mother #1.

Mother #2 engaged in additional acts of domestic assault against Mother #1. When the police arrived, Daughter was turned over to Mother #1.

A second OFP against Mother #2 followed. Mother #2 violated the OFP on multiple occasions.

Father, who is Black, learned of Daughter’s existence in the summer of 2016. He and daughter met, for the first time, in August 2016. From August 2016 to December 2017 he saw Daughter a total of 11 times, for two to three hours per visit.

Father filed a petition for legal separation in March 2017. Mother #2 answered by seeking a dissolution of marriage. Mother #1 intervened in that action. Mother #2 initiated a parentage proceeding against Father, seeking the non-existence of parentage.

Concurrently, the assigned guardian ad litem issued a report recommending that Mother #1 be awarded sole physical and legal custody of Daughter, with Mother #2 and Father awarded supervised parenting time.

The report of the GAL also noted: (1) Mother #2 commonly threatened not to follow court orders; (2) Mother #2 commonly threatened to retrieve Daughter absent the right to do so; and (3) Mother #2 had taken substantial steps toward her threats to illegally retrieve Daughter.

Matters were resolved in mediation in 2018. The parties agreed to share joint legal custody. The parties further agreed that Mother #1 be awarded sole physical custody of Daughter. The home of Mother #1 serves as Daughter’s primary residence. Mother #2 and Father have a graduated parenting time schedule.

Three years later, Mother #1 filed a motion, seeking permission to relocate with Daughter to San Diego, California, to pursue a career opportunity. The district court denied Mother #1’s motion after balancing the factors outlined in Minn. Stat. sec. 518.175, subd. 3(a).

Mother #1 appealed, arguing the district court’s findings were not supported by the record and that Daughter’s best interests were served in the proposed relocation to California.

The district court first determined that the purpose of the move was not to interfere with the parenting time in favor of Mother #2 and Father.

It then considered the eight statutory best interest factors, including (in short form): (1) the nature of the relationship between the non-relocating parent(s) and child; (2) the child’s development; (3) the feasibility of preserving the relationship between the non-relocating parent(s) and the child; (4) the child’s preference; (5) whether a history of thwarting a child’s relationship with the other parent(s) exists; (6) whether relocation will result in an increased quality of life for the child; (7) the reasons each seeks/opposes the move; and (8) the effect of domestic abuse upon the child or parent seeking to relocate.

Recall, in cases involving domestic abuse, the burden shifts and the non-relocating parent must demonstrate that the relocation does not serve a child’s best interests.

The district court opined that factors (1) and (2) weighed against relocation, while factors (3) and (5) favored relocation and factors (4), (6), (7) and (8) were neutral.

The court of appeals limited review to factors (1), (2) and (8).

As to factor (1) (nature of relationships), the court of appeals noted that Mother #1 indicated she is willing to do “everything in her power” to give Mother #2 and Father a meaningful presence in Daughter’s life, including time on holidays and unlimited electronic access.

Judge Michael L. Kirk also noted that Mother #1 “has done the lion’s share of the parenting work and has formed an essential primary bond with [Daughter].” In light of that fact, “the district court’s decision with respect to this factor is clearly erroneous.”

As to factor (2) (developmental needs), the district court found “[d]evelopmentally, a move to California should not be difficult for her. However, [Daughter] is darker skinned and [Father] and his family will play an important role in her life as she gets older and has to deal with the reality of being a biracial child…[and that] weighs against relocation.”

Judge Kirk embraced a different perspective. He determined that “dealing with the reality” of being a Black child in the United States, despite the district court acknowledging the fact that a move to California would not be developmentally difficult for Daughter, was clearly erroneous and did not weigh against relocation.

Finally, as to factor (8) (domestic abuse). The district court found that factor neutral, despite the long record of domestic abuse by Mother #2 in Daughter’s home. Judge Kirk indicated that history “should not simply be dismissed” and the record does not support the district court’s finding.

Ultimately, the court of appeals reversed without remand.

The Canaday decision, while involving a tri-parenting arrangement, confirms that the statutory law concerning out-of-state relocation remains applicable regardless of the number of parents involved in the dispute.

The core analysis continues to revolve around the role each parent has played in the life of a child and the ability to maintain the same type of relationship following the relocation. The underlying facts of Canaday are rather unique in supporting relocation. Certainly the “right result” in most cases will not be easy to ascertain.

Jason Brown is a shareholder with Barna, Guzy & Steffen, Ltd. in Coon Rapids, Minnesota. In addition to his work as a divorce lawyer, he provides mediation services for family court litigants. Jason can be reached at [email protected].

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