U.S. Eighth Circuit - The FindLaw 8th Circuit Court of Appeals Opinion Summaries Blog

Don't Move if you Want to Stop Kids' Relocation, ND Court Rules

Custodial parents may relocate their children to a new state without a court order, the Supreme Court of North Dakota has ruled, so long as the noncustodial parent has "moved" out of the state. The noncustodial parent does not need to have intended to establish residence in a new state for his or her relocation to count as a "move" under North Dakota law.

The case, Eggers v. Eggers, involves a mother with primary custody of three minor children who moved them from North Dakota to Ohio to North Carolina without the father's consent or a court order. No order was needed, the court found, since the father had already left the state.

The Eggers Children's Frequent Moves

Prior to divorce, both parents agreed that Kimberly Eggers, the mother, would relocate their children from North Dakota to Ohio. Over three years, Kimberly and the three children moved between the states several times.

As the divorce was finalized, Timothy Eggers, the father, moved to Minnesota. The mother requested to change the children's' residence to North Carolina, which Timothy opposed.

The court declined to issue an order to change residence since Timothy no longer lived in North Dakota. Under North Dakota law, a custodial parent may not relocate the children to another state without a court order or the consent of the second parent. An order isn't required, however, if the second parent has "moved to another state" and is more than fifty miles from the residence.

But I Never Intended to Relocate ...

Mr. Eggers claimed his move to Minnesota was only temporary -- that he planned to return to North Dakota after the divorce's completion and expected his children to do the same. The district court didn't seem to care. Since he now lived in another state, the court was not required to enter an order on relocation.

On appeal, Mr. Eggers argued that his residence could not change to another state without the "unity of act and intent" -- he must not simply relocate, but also intend that his residence move to a new domicile.

The state Supreme Court noted that the relevant statute, regarding relocating children, did not say that a parent must establish new residency in another state; the parent must simply "move." Regardless of the parent's intent or his residence, the act of "moving" is enough -- relocation need not be paired with the intent to leave the state.

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