Table of Contents
Parenting time is a “big deal” and is essential to a healthy parent-child relationship. Thus, to protect the non-custodial parent’s parenting time, which embodies a parent’s fundamental right to parent and to raise his or her child,2 a relocating parent must provide a notice of intent to relocate to the non-custodial parent before the relocation.3 This notice protects this fundamental right to parent by affording the non-custodial parent due process by providing both notice and an opportunity to be heard by the relevant divorce or paternity court and further allows the non-relocating parent to object to the relocation in advance of the relocation. The notice requirement is not optional. To relocate, the relocating custodial parent (or non-custodial parent if that be the case)4 must serve the other parent with a notice of intent to relocate before relocating. If they fail to do so, the court may enjoin (i.e., stop)5 the move by the custodial parent with the child(ren) or modify physical custody to the non-custodial parent who remains behind. This may be a temporary custody modification until the relocation can be heard by the trial court to determine if the relocation is made in good faith and for a legitimate reason by the relocating parent6 or it may be a permanent modification based on the relocation itself constituting a substantial change of circumstances.
The importance of parenting time noted, relocation tends to complicate physical custody matters as that the non-custodial parent must get parenting time to preserve his/her relationship with the child(ren), which either means the relocation should be denied or, or where permitted, that parenting time should be reworked given the particular distance. As is often the case, notice often triggers litigation and a challenge to the move. Relocation cases sometimes become more complex and complicated because of missteps made by the relocating parent who may have misinterpreted the law, which may lead the trial court to modify physical custody to the non-custodial parent. How does this occur? Some parents either have incorrect beliefs or may have been provided incorrect information regarding their duties to the non-custodial parent when it pertains to relocation, such as believing that relocation is permissible without notice to the other parent or approval by the court so long the relocating parent relocates within one hundred (100) miles and stays within the state of Indiana.7 Other parents intentionally put themselves in significant legal jeopardy because they simply do not abide by the law and just relocate with the child(ren) without any notice to the non-custodial parent, presupposing they can do so with impunity; this is not the case and may lead to a custody modification to the non-custodial (non-relocating) parent. These are but a few of the complexities and contingencies surrounding relocation for custodial and non-custodial parents. This blog covers what custodial and non-custodial parents need to know about relocation and their rights and duties under current Indiana law.
Overview of Child Custody Orders.
The relocating parent showing he or she has considered and accounted for the non-custodial (non-relocating) parent’s parenting time goes a long way to inferentially show the move is made in good faith and for a legitimate reason as opposed to being a mere convenient excuse to move further away from the non-custodial parent. Depending on the reason for the relocation, particularly those that generate the most angst, such as relocating to live with a new love interest, this goes a long way to show good faith. The non-relocating parent often just views this (and this is the defense to relocation) as a sham to replace him or her as with a new maternal or paternal figure. Ultimately skilled legal counsel is necessary to properly advocate for the relocation if it is objected to or to defend against the relocation. There are numerous legal permutations to relocation and a variety of ways to proceed under the relocation statutes.
In paternity cases, it is frequently the case that the parents established paternity at the hospital but never had the legal paternity registered with a court, and the parents just worked out parenting time. If this is the case (where paternity may have been legally established at the hospital but not filed with a court and decree of paternity issued by that court), then the custodial parent (typically the mother) can move without any requirement to file a notice of intent to relocate. In the absence of a formal paternity custody order, counsel for the non-relocating father will then have to open a paternity case and object to the relocation. This is just one of the permutations that arise with relocation under the relocation statutes and the way they interact under the relevant custody statutes contained in the Paternity and Divorce Acts. Thus, the current custody order is the point of departure for any relocation case.
This noted, the Legislature is constantly revising statutory laws to comport with the times. There have been several revisions to the relocation statutes over the years, one of which also indicates why the current child custody order is the place to start with each relocation case. Specifically, under the most current version of the relocation statutes, notice is not required in certain cases. A relocating parent is not required to file a notice of intent to relocate if the relocation has been addressed by prior court order, including a court order relieving the relocating parent with the requirement to file a notice.10 Thus, in some cases, the parties contemplate relocation and contract for waiving notice. However, as the trial court must always look out for the children's best interests, a non-relocating may still object to the relocation if it is not in the children's best interests.11
Also in an attempt to remove an unintended consequence of the first significant relocation revision that replaced the one hundred (100) mile rule, the Legislature recently amended the requirement to file a notice if the relocation is close by. That is, if the relocation will result in a decrease in the distance between the relocating parent’s residence and the non-relocating parent’s residence, notice is not required.12 Further, the filing of a notice is dispensed with if the relocation is not more than twenty (20) miles in distance between the relocating parent's residence and the non-relocating parent's residence. In both cases where notice of relocation is not necessary, the relocation must also allow the child to remain enrolled in the child’s current school.13 For these, and many other reasons, the controlling custody order is the point of departure for every relocation case. These orders, when matched with the relocation statutes and relevant body of law (e.g., paternity or divorce), set the stage for the need for a notice of intent to relocate and how to advocate or object to relocation relative to the change in the non-relocating parent’s IPTGs-designated time. With this determined, a proper notice of intent to relocate may be prepared and filed14 or objection to relocation.15 The notice of intent to relocate and response and objection have specific time limitations and content requirements that must be met to perfect a notice or objection.
Child Relocation Laws That Apply in Indiana.
- Indiana Code section 31-17-2.2-0.5: Contact information. This statutory provision provides that a person who has or is seeking custody of a child, parenting time with a child, or grandparent visitation must keep all other individuals who have or are seeing right with the child notified of certain information. This is the basic information including the person’s address, all telephone numbers for the person, and all electronic mail addresses. This provision ensures that there is accurate information available to provide a notice of relocation or objection to same to make the relocation statute workable.
- Indiana Code section 31-17-2.2-1: Requirement to file a notice of intent to relocate, exceptions, and impact of relocation on the non-relocating parent: This provision of the relocation act provides that a party seeking to relocate must file a notice of intent to relocate, lists exceptions, and provides details of how the relocation will impact the non-custodial (or non-relocating) parent’s parenting time. Although typically not of legal consequence, a non-custodial parent is also required to file a notice of intent to relocate.
- Indiana Code section 31-17-2.2-2: Initial determination of custody. This section of the relocation act addresses relocation in the situation custody has not been determined. For instance, if a married parent filed a divorce action and indicated that he or she intends to relocate with the child, this provision of the relocation scheme allows the trial court to consider the general statutory considerations on custody as well as those contained in the relocation statute. This is because a relocation in the initial case litigation, given the example where the parents live close together, even if estranged, would necessarily impact standard IPTG time, such as one night a week and every other weekend for a child over three (3) years of age.
- Indiana Code section 31-17-2.2-3: Contents of notice of intent to relocate. This is the key section of the relocation statutes. This specifies how long before a proposed relocation a notice of intent to relocate must be filed and what information it must contain, such as why the parent is moving and if it is anticipated that revision of parenting will be necessary, which is so, is a much stronger basis for objection to relocation.
- Indiana Code section 31-17-2.2-4: Risk of harm by disclosing relocation information. This is a relatively obscure provision in the relocation statute that is rarely used. It allows in the right circumstances the parent relocating with the child to not provide address and telephone numbers as well as other information required under the relocation statutes. This is generally aimed at protecting a parent and children who are relocating due to domestic violence.
- Indiana Code section 31-17-2.2-5: This is the counterpart to the relocation statute and allows a non-relocating parent to object to the relocation, as well as consent to the relocation. There are specific time deadlines for objecting relocation and, upon objecting, the objection may request a full evidentiary hearing on relocation.
- Indiana Code section 31-17-2.2-6: Temporary restraining order to restrain or permit relocation. In general, this provision is used to prevent a child from being relocate pending a full evidentiary hearing if there is an objection to relocation return of the child to the non-relocating parent if the court finds that a child has been relocated with proper notice or court order.
Can Parents Agree to Move Without Court Approval?
Presupposing there is a controlling custody order, litigants can agree to a relocation. The proper way to do so is by having counsel prepare an agreed entry that the parties sign and file this with the court to order after it reviews same and determines that the relocation is in the child(ren)’s best interests. Without court approval, the agreement may not be enforced later by the trial court in the event the non-relocating parent subsequently objects to the relocation and files such with the trial court, seeking a return of the child to his or her custody until there is a hearing. This is because trial courts are always best to determine child custody, parenting time, and child support because they are charged with overseeing children of paternity and divorce cases. For this reason, no oral or written agreement on custodial matters agreeing to relocation is binding or enforceable by the trial court. Thus, if the parents enter into an agreement that is not in the children's best interests, the trial court can (and sometimes does) deny it. That said, in all other aspects of divorce cases, such as the property division or spousal maintenance, for example, the parties are free to agree to terms that one-sided or that the court would not have the authority to order.
How Do Courts Decide Whether to Allow a Move?
The relocation statute itself sets for the considerations the trial court must review in the evidence to determine relocation. These are the factors that trial courts consider in every custody case as well as additional factors contained in the relocation statute. Ultimately, the court has to determine if the relocation is in the child’s best interests. It is important to note that relocation brings custody and modification (if it has been determined) before the trial court. In fact, the relocation itself could be so problematic for the non-custodial parent and parenting time that it would be unforeseeable that the trial court would not modify physical custody. A classic example would be if a custodial parent wanted to move with the child to a distant country that was not a signatory to the Hague Convention on the Civil Aspect of Child Abduction. In this case, in addition to the distance, if the custodial parent were permitted to relocate with the child and then refused to return the child for parenting time with the non-custodial parent, it is doubtful the foreign court would enforce the parenting time order.
The eight (8) custody factors that a court considers in every divorce and paternity case to make the initial custody decision in disputed cases are also considered in relocation cases by the trial court as it decides if the relocation is in the child’s best interests. Those are as follows:
- The age and sex of the child.
- The wishes of the child's parent or parents.
- The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
- The interaction and interrelationship of the child with: (A) the child's parent or parents;(B) the child's sibling; and (C) any other person who may significantly affect the child's best interests.
- The child's adjustment to the child's: (A) home; (B) school; and (C) community.
- The mental and physical health of all individuals involved.
- Evidence of a pattern of domestic or family violence by either parent.
- Evidence that the child has been cared for by a de facto custodian.
Under the relocation statutory scheme, the additional factors a trial considers in every relocation case in analyzing if relocation is in the child’s best interests are the following:
- The distance involved in the proposed change of residence.
- The hardship and expense involved for the non-relocating individual to exercise parenting time or grandparent visitation.
- The feasibility of preserving the relationship between the non-relocating individual and the child through suitable parenting time and grandparent visitation arrangements, including consideration of the financial circumstances of the parties.
- Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a non-relocating individual's contact with the child.
- The reasons provided by the: relocating individual for seeking relocation; and the nonrelocating parent for opposing the relocation of the child.
- Other factors affecting the best interest of the child, which is effectively where the court brings into consideration the factors set forth in the original custody modification statute.
Ultimately, when all of the evidence is presented (witnesses and exhibits) and the evidentiary record closed, the trial court first determines if the relocating parent established the proposed relocation was made in good faith and for a legitimate reason. While it may seem apparent that all proposed relocations would meet this burden, some particularly acrimonious parents will be in situations where the custodial parent seeks to relocate purely or largely to thwart the non-custodial parent’s IPTGs-designated time. If this is the case, then the court determines then the non-relocating parent has the burden of proof to show the proposed relocation is not in the best interests of the child. Nevertheless, as should be apparent, the best interests play a role in the relocating and non-relocating parent's burdens at the relocation hearing.
What Happens When a Non-Custodial Parent Relocates?
Under the relocation statutes, this is a person who has parenting time with his or her child(ren).17 Thus, the parent is a relocation individual who must file a notice of intent to relocate unless otherwise excepted under the Relocation Act. As a practice matter, if the distance is greater and limits parenting time, it is rare the custodial parent objects to relocation because it results in less parenting time.18 However, the non-custodial parent could, under the Relocation Act, file his or her request to have the court set a time for a hearing on the relocation to seek to modify parenting time to try to recapture some of the lost time due to relocation or otherwise modify relocation to maximize his or her time with the child(ren).
This noted, many non-custodial parents just move without filing the required notice of intent to relocate and this is not objected to by the custodial parent. In any case, a non-custodial parent may move for a modification of parenting time at any time (even without a relocation) under statutes found in the Divorce and Paternity Acts if it is in the best interests of the child. This is a lower burden than modification of custody or that found in the Relocation Act. The specific provision of the Divorce Act that allows for a modification of parenting time at any time in the child(ren)'s best interests, which states, in pertinent part, as follows: “The court may modify an order granting or denying parenting time whenever modification would serve the best interests of the child.”19
Should I Hire an Attorney to Handle My Relocation?
Relocations of any distance by the custodial parent tend to generate significant acrimony between the parents, particularly where the relocation is tied to a new love interest. The reality of the situation is if the relocation is granted, the non-custodial parent’s parenting time is going to drastically change. For this reason, most relocations will likely be highly contested. With counsel, a relocating parent can fully develop the evidence to show the relocation is made in good faith and for a legitimate reason. While this may seem simple, distilling every piece of evidence is not the workspace of a typical litigant, whereas this is what attorneys do every day. In addition, testimony and documentary evidence (exhibits) have very specific evidentiary requirements for admissibility as outlined in the Indiana Rules of Evidence. Without following these rules, your key evidence to prove good faith and legitimate reason may be excluded and cause you to lose your relocation case or custody.
For non-relocating parents, it is equally important to have an attorney who has handled relocation cases and understands the statutory framework of the Relocation Act and the appellate cases that have applied and/or interpreted these statutes. With this, a fierce defense can be presented to relocation in many ways. For instance, in defending against relocation, your counsel may well seek to have a relocation evaluation completed by a forensic clinical psychologist to help establish in the evidence that relocation is not in the child(ren)’s best interests. There are simply numerous tools available to attorneys to get evidence to strongly advocate for relocation or defend against same that a pro se litigant cannot possibly use. Thus, the success of your desired relocation or objection to it may well turn on the skills of your legal counsel to identify and get admitted the evidence necessary to successfully advance your position.
This blog is written by attorneys at Ciyou & Dixon, P.C. who handle relocation in all counties in Indiana as well as appeal relocation cases. This blog is written for general educational purposes and is not intended as legal advice or a solicitation for services. It is an advertisement.
- Physical custody is who the child primarily lives with. The non-custodial parent gets parenting time under the Indiana Parenting Time Guidelines, which is one night a week, every other weekend, alternating holidays, and one-half of the summer. This is a presumption. Many parents have different custody arrangements, such as joint physical custody or parenting time an extra day a week. Legal custody, on the other hand, which can be sole or joint, is making decisions about a child's education, religion, and/or health care.
- Troxel v. Granville, 530 U.S. 57 (2000) (parents have a fundamental right to raise their children with minimal state interference).
- Generally, due process of law requires notice and an opportunity to be heard under the Fourteenth Amendment of the United States Constitution.
- In practice, there is little litigation over the relocation of a non-custodial parent if he or she does not seek a modification of parenting time or will accept less parenting time that is the by-product of the move.
- This is found in the relocation statutes under Indiana Code section 31-17-2.2-6.
- This is found in the relocation statutes under Indiana Code section 31-17-2.2-5(e). If the relocating parent meets this burden, the burden then shifts to the non-relocating parent to show that the proposed relocation is not in the best interests of the child(ren) under Indiana Code section 31-17-2.2-6.
- An old relocation statute allowed a move without court approval if it was within one hundred (100) miles and within Indiana without filing a notice of intent to move with the clerk of the court that issued the custody order and send a copy of the notice to the parent not awarded custody. Code 31-17-4 (or I.C. 31-1-11.5-24 before its repeal). A good case analyzing this repealed statute is Bojrab v. Bojrab, 786 N.E.2d 713, 730-31 (Ind.Ct.App.2003), but this case was affirmed and vacated in part on transfer to the Indiana Supreme Court.
- This initial burden for the relocating parent is found in Indiana Code section 31-17-2.2-5(e).
- If the relocating parent carries his or her burden of proof, the non-custodial parent must show that the proposed relocation is not in the best interests of the child according to Indiana Code section 31-17-2.2-5(f).
- This ability to address future relocations in child custody orders is contained in the relocation statute Indiana Code 31-17-2.2-1(b)(1).
- No agreement between the parties that affects custody, regardless of whether it is in the first instance determining or upon a modification of custody, is automatically binding upon the trial court. In re the Paternity of K.J.L., 725 N.E.2d 155, 158 (Ind.Ct.App.2000).
- When the one-hundred (100) mile rule was abrogated by a new statutory scheme, the Indiana Supreme Court first decide a case under the same in its Baxendale Baxendale v. Raich, 878 N.E.2d 1252 (Ind.2008). In this case, the Supreme Court noted this contingency and dismissed them as largely “academic because a move across the street unlikely to trigger opposition” when notice of relocation is provided. Id. at 1257.
- These exceptions are codified in the relocation statutes in Indian Code section 31-17-2.2-1(b).
- The requirements of the Notice of Intent to Relocate are codified at Indiana Code section 31-17-2.2-1.
- The ability to object to Notice of Intent to Relocate is codified at Indiana Code section 31-17-2.2-5.
- This argument was advanced as a violative of the constitutional right to travel in the Baxendale The Indiana Supreme Court affirmed the relocation statute could not prohibit a parent’s move but a trial court could modify custody of the child to the non-relocating parent. Baxendale v. Raich, 878 N.E.2d 1252, 1259 (Ind.2008).
- Indiana Code section 31-17-2.2-0.5.
- Unfortunately, most custodial parents do not desire the non-custodial parent to have more time and are likely to fight any request for additional parenting time upon the move a greater distance from the custodial parent. That said, there are occasionally custodial parents who genuinely want the non-custodial parent to have significant, meaningful time and maybe agreeable to altering parenting time on relocation. However, this would normally not be by an objection or request for a hearing, but an agreement between the parties filed with the court for approval.
- Indiana Code section 31-17-4-2.
