Legal Memorandum: Evidentiary Hearings and Child Custody

Issue: Under Minnesota law, is the party who opposes a motion to relocate the divorced parties’ child to another state entitled to an evidentiary hearing in order to cross-examine the court-appointed relocation evaluator regarding a report recommending that the court allow the move?

Area of Law: Family Law, Litigation & Procedure
Keywords: Evidentiary hearing; Child custody; Motion to relocate
Jurisdiction: Minnesota
Cited Cases: 334 N.W.2d 393; 748 N.W.2d 279; 543 N.W.2d 639
Cited Statutes: Minn. Stat. Minn. Stat. § 518,175, subd. 3(b), (c), § 518.18, § 518.175, subd. 3
Date: 11/01/2011

No decisions were located which discuss due process rights as a basis for a hearing on such matters.  However, the following cases state principles that relate to the issue and may, depending, on the exact circumstances and procedural posture of a case, support an argument that a hearing should be held.

Preliminarily, it should be noted that in family court matters, the judge has very wide latitude in deciding whether an evidentiary hearing should be granted, and their decisions in such matters are rarely reversed.  See, e.g., Freitag v. Freitag, No. A07-2011 (Minn. Ct. App. Aug. 19, 2008) (unpublished) (“In family matters . . . it is presumed that noncontempt motions will be decided without an evidentiary hearing “unless otherwise ordered by the court for good cause shown.” (removal case)).

See Auge v. Auge, 334 N.W.2d 393 (Minn. 1983), in which the court held that a parent with sole physical custody is presumptively entitled to remove a child to another state and that permission to remove may be granted to the custodial parent without an evidentiary hearing if the parent opposing removal fails to make a prima facie showing sufficient to support a ruling in his or her favor.  See also Silbaugh v. Silbaugh, 543 N.W.2d 639 (Minn. 1996).  However, as the Supreme Court later noted in Goldman v. Greenwood, 748 N.W.2d 279 (Minn. 2008), Auge “has no remaining validity because it has been superseded in its entirety by statute,” citing Minn. Stat. […]

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