Custody matters may not always involve two parents who are U.S. Citizens. Often nationals from other countries will be admitted to the U.S. on a U.S. Visa (e.g., student visas or employment visas). Minnesota Courts can retain jurisdiction over a minor child, if the minor child has been in Minnesota for at least 180 days. Jurisdiction does not require that one of the parents or both of the parents be a U.S. Citizen. Jurisdiction also does not depend on the child being a U.S. Citizen.
Understanding Your Rights to Be Within the United States
When in the U.S. by Visa, it is important for the parent who is a non-U.S. Citizen to understand the terms by which they are allowed to be within the United States. Minnesota law does not govern those terms. Rather, entry into the United States by Visa is governed by Federal Law. This is important because a Family Law Judge cannot extend or modify the terms of your Visa. It is extremely important to understand when your Visa will expire (e.g., after completing school) or may be revoked (e.g., you commit and are found guilty of certain crimes).
Time Restraints When Here By U.S. Visa
Custody disputes often take six (6) months to one (1) year to resolve (they can take longer in some cases). If you are here on a Visa, you may feel rushed to get the matter resolved before your Visa expires. Understand that a Court can Order that a child remain in Minnesota even if you are required to return to your country of origin.
Determining Whether a Child May Leave the State of Minnesota
As in any custody matter, the Court looks to Minnesota’s best interest factors. However, Minnesota law also requires that Courts consider additional factors when deciding whether a minor child can leave the state of Minnesota. Specifically, the Court considers, in part, the following:
- What is the extent of involvement and duration of the child’s relationship with the person looking to relocate and with the person staying in Minnesota?
- What is the child’s age, developmental stage and specific needs? How will relocation of the child impact the child’s physical, educational, and emotional development, taking into consideration special needs of the child?
- Is it possible to preserve the relationship between the parent not leaving Minnesota and the child through parenting time arrangements?
- What is the child’s preference, taking into consideration the age and maturity of the child?
- What are the reasons for each person seeking or opposing the relocation?
These guiding factors provide the basis for a Court to either order that a child may leave the State of Minnesota (and ultimately the U.S.) or whether the child will remain in the United States. The complete list of additional factors a Court looks at when determining whether a child can leave the State of Minnesota can be found here.
Agreements Can be Created
The Court does not have to decide the matter for you. Rather, in family law, parents are often urged to resolve the matter on their own. This can be done by mediation. Parties can agree to custody and parenting time and memorialize those agreements in a Stipulation that would be signed by the Judge. The Stipulation would then become a Court Order. This is often the most cost-effect and quickest route to resolving the ongoing issues.
Consult an Attorney
If you are here on a Visa and are involved in a Custody Dispute, it is important to speak with a family law attorney. They will be able to advise you on how to protect your rights as a parent.
If you have any questions about your custody proceeding or if you are in the United States on a Visa with a pending custody proceeding, please call me today at 651-647-0087 or reach out via our online contact form to set up your free consultation.