Under the United States Constitution, each person has the right to free travel in and between the states. Where the parties have a child in common and custody is in place (whether by paternity or divorce), this right to still applies. However, under the Paternity and Dissolution Acts, the relocating party must do two things:
First, the moving party must provide advance written notice of the intent to relocate 90 days in advance or as soon as possible if the time is shorter. This applies to the custodial and non-custodial parent.
Second, the relocation must be made in good faith and for legitimate reason. Particularly where a moving party is the custodial parent, he or she must be doing so for reasons that do not related to putting distance between the non-custodial parent purely for purposes of interfering with the custodial relationship. Where this is demonstrated in the evidence, the Court may order a modification of custody under the considerations set forth in making its initial custody decision, modification, as well as the additional considerations put forth in the relocation statutes.
Because we are a mobile society, a non-relocating parent who does not want the relocation to occur because it interferes with parenting time or is made to thwart the parent-child relationship, this parent must act. He or she must make the third and forth steps contained in the relocation act:
Third, the non-relocating parent must file an objection with the trial court to the relocation. This triggers custody considerations. Court have vast discretion in this area, but generally are unfavorable to relocation just for the sake of relocating. In other words, a custodial parent whose basis to relocate is to be in a warmer climate is unlikely to prevail, meaning the court may give him or her a choice to relocation and modify custody to the other parent or stay put.
Fourth and related, the non-relocating who objects must request a hearing and put on evidence that the relocation is not made for a good purpose. Ultimately, this comes down to a best interest’s determination. If the court finds the relocating parent is doing so for legitimate reasons and this will not harm the child and his or her relationship with the parent, then it may grant the relocation with the child. If not, it may modify custody to the non-relocating parent. This is the complex interaction of facts of a case with the initial custody statute, modification and relocation statutes.
We hope you find this information useful in understanding the Indiana appellate process. This blog post is written by attorneys at Dixon & Moseley, P.C. and is for general educational purposes only. It is not legal advice, or solicitation for legal services. Dixon & Moseley, P.C. attorneys handle civil and criminal appeals from all Indiana state trial court, Seventh Circuit Court of Appeals, or United States Supreme Court.