Some days, I feel as though most of my professional conversations can be boiled down to one question:

“So, what does that law mean, anyway?”

Clients. Students. Blogdom.  The curious general public.

But it also seems like a pretty fair question. After all, I’m a lawyer.  I  know the laws. I read the case law. I spent 20 years in school.

How hard could it be?

And the question seems all the more reasonable given the emphasis our legal system places on transparency and certainty. We generally accept that people should be able to know what behavior the law labels as blameworthy before being arrested or sued.

These principles are so important we even say them in Latin.

So on that same basis, you might think that after 15 years as part of Minnesota’s statutes, one of the more significant terms in our child custody laws would have at least a reasonably ascertainable meaning.

You’d be wrong.

The Problem of “Primary Residence”

As part of the 2000 statutory amendments that introduced Parenting Plans to Minnesota, the legislature introduced a new term into our custody laws: “primary residence.”


In essence, the revised law preserved the same, best-interests-only parenting time modifications except where the change would modify the child’s primary residence. Those changes required the sort of endangerment-type requirements typically reserved for custody modifications. See Minn. Stat. § 518.18.

The problem, of course, was that, like the batteries to my favorite childhood toys, the definition was apparently sold separately.

And “primary residence” fights have now burst onto the legal stage with frightening consequences for divorced and separated families.

The “Primary Residence” Polyseme

Perhaps the most frustrating thing–for practitioners and for parents—are the myriad definitions our Court of Appeals has attributed to “primary residence.”

The controlling case, Suleski v. Rupe, 855 N.W.2d 330 (Minn.App. 2014), seems content to explain: “[A] child’s “primary residence” is the principal dwelling or place where the child lives.”


I don’t think I’m alone in finding that holding markedly unhelpful.

As discussed in a prior post, even if we might have guessed that “primary residence” was roughly equivalent to its synonymous sibling “principal dwelling,” how do we determine where that is?

Can a child have a legal primary residence even when the parents and Court didn’t bother to say so in the original custody order? Suleski seems to say yes.

Is the question solely a matter of counting overnights? Again, seemingly yes.

How many overnights are enough to make one parents home primary? Our Courts haven’t offered an answer, or even a workable test.

Instead of definite answers to any of these questions, we’re faced with a mishmash of opinions from the Court of Appeals that, if anything,  raise more questions.

So, for example, where one parent has sole physical custody, his/her home is (probably) the child’s primary residence.[1]

But, even where parents share physical custody, one parent’s home may qualify as the child’s primary residence where one parent cares for the child a disproportionate amount of the time.[2]

If that weren’t enough, a child’s “primary residence” might not even be with a particular parent after all.  Instead, it might be the neighborhood/town/county where the child lives.[3]

And whatever “primary residence” means in the context of parenting time, don’t confuse it with “a parenting plan provision which specifies the child’s primary residence” for the purposes of our child custody modification statute.[4]

Now do you see why I’m graying prematurely?

This is Your Hometown

To further confuse the debate, a recent decision from the Court of Appeals seems to equate “primary residence” with a child’s hometown, effectively prohibiting the residential parent from moving elsewhere unless she can prove that the current schedule endangers the minor child.

In Starren v. Starren, No. A15-0141 (Minn. Ct. App. Oct. 5, 2015), the Court of Appeals affirmed a Trial Court’s decision denying Mother’s motion to change the parenting time schedule so she could relocate from Thief River Falls to Grand Rapids, because Mother was unable to prove endangerment.

While the Trial Court required Mother to prove endangerment because of concerns about restricting Father’s parenting time (more on that here), the Court of Appeals silently rejected that rationale in favor of its own:

Mother needed to prove endangerment because she wanted to relocate the children away from their primary residence, Thief River Falls.

“Primary residence” wasn’t a matter of which parent the children lived with, but which town they lived in.

Mind you, the parties’ custody order never stated the children’s primary residence was in Thief River Falls. The Court of Appeals read this as an “implicit” finding based on statements made in Mother’s affidavits from the time of the divorce that she did not intend to relocate, and the District Court’s finding that “[n]either party expressed any desire to take the children from the Thief River Falls community.”

As Judge Chutich pointed out in her well-reasoned concurrence (under which Mother still wouldn’t have prevailed on her request to move out-of-town), this one is a head scratcher.

After all, there’s no debate that if Mother had asked to move out-of-state, she would have been held to a simple best interest standard. See Minn. Stat. § 518.175, subd. 3.

But under the reasoning in Starren a request to move from Northwestern to Northeastern Minnesota requires endangerment?

The logic seems puzzling.

Even more puzzling, the Court of Appeals went on to reject the Trial Court’s attempts to place a locale restriction on Mother’s residence (holding that change, too, would require a finding of endangerment), while effectively achieving the same end result.

A Call for Clarity

“Primary residence,” you might scoff, “Isn’t this really just another ineffectual label for parents to litigate. Another quasi-physical-custody-boondoggle—oft fought over, but to no real end?” 

If only.

Because nothing in Starren limits its holdings to substantial moves like the one proposed by Mother (which Google Maps tells me was about 160 miles).  Would a move from Edina to St. Louis Park modify a child’s primary residence? Literally from one side of the avenue to another?

If a child’s primary residence can be a small town, could it also be a whole county? Or a single neighborhood? A block? A house?

Starren doesn’t provide a logical stopping point, but it does have the potential to lock parents into the same towns they resided in at the time of their divorce on pain of losing their children.

And just like that, primary residence became the equivalent of house arrest.


[1] Higgins v. Higgins, No. A12-2127 (Minn. Ct. App. Jan. 27, 2014) (“Here, the …marriage-dissolution judgment granted physical custody of [the child] to [mother], thereby establishing her primary residence with [mother]”)

[2] Himley v. Himley, No. A12-1876 (Minn. Ct. App. Aug. 26, 2013) (“[E]ven without a precise definition of “primary residence,” common sense dictates that if a child spends 72% of his time with one parent, that parent’s home is his primary residence.”)

[3] Schisel v. Schisel, 762 N.W.2d 265 (Minn. Ct. App. 2009) (Although ‘residence’ could mean ‘with whom’ a child is to live, its common meaning refers to ‘place,’ or geography. Recognizing and applying the common meaning of ‘residence’ and accepting that the legislature did not intend a superfluous redundancy when it used that term, we hold that ‘residence’ includes ‘place.’”)

[4] Minn. Stat. § 518.18; Blair v. Blair, No. A12-1154 (Minn. Ct. App. Mar. 11, 2013).

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