This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Teresa Lynn Hacker,






Paul Gerald Hacker,




Filed February 4, 2003


Anderson, Judge


Wright County District Court

File No. F297783



Ellen M. Schreder, Carson, Clelland & Schreder, 6300 Shingle Creek Parkway, Suite 305, Minneapolis, MN  55403 (for appellant)


Kevin M. O’Brien, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN  55415 (for respondent)


            Considered and decided by Wright, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N




Appellant-mother challenges the district court’s denial of her motion to relocate to Iowa with her two children.  Because the evidence supports the district court’s findings that relocation is not in the best interests of the two girls and would endanger the health and well-being of one of the children, we affirm.



            The marriage of appellant-mother Teresa Hacker and respondent-father Paul Hacker was dissolved January 12, 1998.  The parties agreed to joint legal custody and the court awarded appellant sole physical custody of their children, A.H. and M.H.  A.H., born on September 10, 1993, is presently nine years of age; M.H., born on April 28, 1995, is currently seven years old.  Respondent was awarded “liberal visitation to be mutually agreed upon by the parties.”

            Although not part of the judgment, the parties orally agreed that appellant would not move the children from the area of Buffalo, Minnesota until the children finished high school.  They also informally agreed that when only one parent was working, the other would provide parenting, if possible.  

            In the fall of 2000, appellant placed A.H. in therapy with William Afeldt of the Monticello Counseling Center to address A.H.’s unexplainable fears.  Afeldt diagnosed separation-anxiety disorder and psycho-social stressors.  The stressors included chronic marital discord, exposure to domestic violence, frequent past moves, difficulty adjusting to appellant’s new work schedule, a non-united parental front, and significantly different discipline strategies.  A.H. was in therapy between September 2000 and May 2001. 

            In April 2001, appellant filed a motion requesting the district court’s permission to relocate to Whitten, Iowa, with the two girls.  Appellant wished to move to Iowa to be closer to her father and other family members and to obtain a job in the horticultural field.  Although appellant purchased a home in Whitten, she has stated she would not move there if the court denied her motion to relocate.

            On May 24, 2001, the district court appointed a guardian ad litem (GAL).  The GAL conducted interviews with the parties and with A.H. and M.H.  She also spoke to A.H.’s therapist, William Afeldt, and reviewed her counseling records.  The GAL observed that both parties are good parents, that they love the children and that a strong bond exists between the girls and their parents.  The GAL recommended against relocation based on A.H.’s separation-anxiety disorder and because a move to Iowa would place great distance between the girls and respondent. 

            The district court denied appellant’s motion to relocate.  The court concluded that respondent had established by a preponderance of the evidence that the proposed move would not be in the best interests of the children and would endanger A.H.’s health and well-being.  This appeal followed. 



            Appellate review of removal and custody-modification cases is limited “to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.”  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996) (quoting Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985)).  We review the sufficiency of the evidence in the underlying record to determine the propriety of the district court’s decision.  Pikula, 374 N.W.2d at 710.  We will sustain the district court’s findings unless they are clearly erroneous.  Id 

            Custody modification is governed by Minn. Stat. § 518.18 (2002).  That statute creates a presumption allowing custodial parents to remove children from the state.  Auge v. Auge, 334 N.W.2d 393, 397 (Minn. 1983).  A related statute provides only one ground requiring denial of permission to move: 

If the purpose of the move is to interfere with parenting time given to the other parent by the decree, the court shall not permit the child’s residence to be moved to another state.


Minn. Stat. § 518.175, subd. 3 (2002).  The limited purpose of this statute is to protect the visitation rights of the noncustodial parent.  Auge, 334 N.W.2d at 397.  The supreme court subsequently extended this principle to cases in which the parents have joint legal custody, as in this case.  Gordon v. Gordon, 339 N.W.2d 269, 271 (Minn. 1983).  It is undisputed that the purposes of appellant’s proposed move are to be closer to her family in Iowa and to attempt to obtain employment.  At no time did appellant indicate that she would interfere with respondent’s visitation rights, and respondent has made no such allegation.

            To overcome the presumption in favor of relocation,

the party opposing the removal must offer evidence which would establish that the removal is not in the best interests of the child and would endanger the child’s health and well-being


Silbaugh, 543 N.W.2d at 641 (emphasis added). 

            Appellant argues the district court lacked sufficient evidence to support its finding on the second prong of the analysis - that appellant’s proposed relocation would endanger either of the two girls.  We disagree.  On this record, finding that a move would endanger A.H.’s health and well-being is not clearly erroneous.  Both the GAL and A.H.’s therapist agreed that, because of A.H.’s separation anxiety, a move to Iowa could be detrimental to her.  The GAL explained that part of A.H.’s anxiety disorder is caused by separating from important figures in her life “[a]nd her father is definitely an important figure in her life.  My concern is that [moving] would exacerbate the condition.”  The GAL also testified that both girls indicated that they did not want to move to Iowa and that they would miss their father and friends in the Buffalo area.  Finally, the guardian stated, “there’s a great possibility” that a move to Iowa would cause the girls psychological harm.[1] 

            Appellant also argues that relocation to Iowa will not unduly interfere with respondent’s parenting time.  Because appellant proposes that respondent have visitation two weekends per month, that the existing holiday visitation schedule continue, and that respondent have an additional week of summer visitation, she argues that the amount of time the girls would spend with their father would not change if she were allowed to move to Iowa.  This argument is irrelevant because respondent is not opposing relocation on the grounds that it will interfere with his visitation time in violation of Minn. Stat. § 518.175, subd. 3.  Instead, respondent claims that the proposed move would not be in the best interests of the children and would endanger their health and well-being.  In addition, because we conclude sufficient evidence existed to support the district court’s denial of appellant’s request to relocate, we take no position on the issue of visitation.

            A parent may have a variety of reasons to relocate to another state.  But whether the motive is personal preference, an improved job market, or the desire to be closer to family members, the focus should remain where the legislature has placed it - on the best interests of the children.  See Auge, 334 N.W.2d at 400.  In this case, respondent established that at least two independent witnesses, trained to make judgments on matters involving children, believe relocation would not be in the best interests of A.H. and M.H. and would endanger A.H.’s health and well-being.  Appellant could have challenged the opinions of the GAL and A.H.’s therapist at trial by presenting contrary expert opinions, but she did not do so.  Instead, appellant relied on her allegation that the district court’s findings were unsupported by the record.  We disagree; the district court’s findings that removal is not in the best interests of A.H. and M.H. and that relocation would endanger A.H.’s health and well-being are not clearly erroneous because the record amply supported those determinations. 


[1]  Because we find adequate evidence of endangerment, we also necessarily conclude respondent met the lower standard of demonstrating that relocation is not in the best interests of the children.  Although we are mindful that respondent must establish both prongs of the Silbaugh analysis to rebut the presumption in favor of permitting relocation, appellant cites no authority for the proposition that, on a record like this one, when the higher endangerment standard is demonstrated, the best-interests test is not.  See Silbaugh, 543 N.W.2d at 641.