With our society becoming more and more mobile, and travel becoming easier, relocation from state to state, city to city, and even country to country, is becoming a common issue in post divorce and paternity cases. When one parent desires to relocate far enough away that the current custodial arrangement becomes unworkable, then what? Adding to the confusion is the trend that more and more parents are sharing joint physical custody.
Either parent can relocate to a new town, city, state or even country. However, whether the child should remain living in the home and community he or she is presently living in, or move with the parent who is relocating can be a hotbed for litigation. Whenever a parent (usually the primary custodial parent, or a parent having joint custody) relocates far enough away that the current parenting time arrangements are not workable, the issue of custody and parenting time modification is ripe for litigation. The process starts with the parent wishing to relocate filing the proper notice of intent to relocate with the court, which places both the court and the other parent on notice of pertinent information related to the relocation and custody1.
When a judge is faced with a decision on custody and parenting time because one parent is moving away, there is a two step analysis. The first step is to determine if the move/relocation is for a good faith and legitimate reason. But what does that mean? Generally, the move cannot be for the purpose of interfering with or thwarting parenting time with the other parent (taking the child away). The parent who wants to relocate and take the child with him or her carries a burden of proof that he or she has sound and cogent reasons to relocate. Typically a better job opportunity which is not available by remaining living in the same community or city, an ailing parent, the move would be closer to familial ties, etc, are reasons the courts have found to be good reasons to relocate. Each and every circumstance is subjective and up to a court to determine because every family is different.
After a court finds that the relocation is for a good faith and legitimate purpose, the second step is to determine what is in the best interests of the child, to go with the relocating parenting, or stay with the non-relocating parent. Just because the relocating parent overcomes the first hurdle in the analysis does not mean they will prevail on the whole case. Things such as who is the child’s primary caregiver, the child’s age (the older and more independent and/or in school and friends, the more likely the child is tied to the community), the parent’s wishes, the child’s wishes, etc. all play a role in the court’s decision.
We hope that you have found this information to be helpful in understanding relocation as it relates to child custody and parenting time. This is not intended to be legal advice. If you have questions or concerns about your specific case, CIYOU & DIXON, P.C. can help evaluate your specific case. This blog post was written by Attorney, Lori B. Schmeltzer.
- Indiana Code § 31-17-2.2-1