Going through a divorce or raising a child who was born outside of a marriage comes with unique challenges for custodial and non-custodial parents alike. Despite these challenges, such parents are not immune to other changes and challenges that life may throw their way. After a divorce or after having a child outside of marriage, a parent may obtain a new career opportunity, engage in a new relationship, desire to move closer to their hometown or their family, or have to move closer to provide care to an ailing family member. Whatever the reason, moving when you are in a co-parenting situation can become difficult due to Indiana’s relocation statutes. Whether you are a parent who is considering moving or you are a parent who is staying put while the other parent is planning on moving away, this blog can serve as a primer for some of the procedural requirements and legal considerations that come into play when relocation is contemplated or occurs.
Procedural Requirements for Filing a Notice of Relocation. The Indiana relocation statutes provide that anytime a parent, custodial or non-custodial, moves, that parent must file a notice with the court that has jurisdiction over the custody of the child(ren), and the notice must be served to any “nonrelocating individual.”1 This includes any relocation plan, whether it is across the country or across the street from the relocating parent’s current residence. The relocating parent must provide ninety (90) days’ notice before he or she intends to relocate to allow the non-relocating parenting to object and seek a hearing.2 While there are statutory exceptions to this much notice being required, failure to do so can place a relocating parent in a weak position in court if the non-relocating parent objects. Thus, where relocation is occurring, the relocating parent is best-served by a proper filing and careful draftsmanship if the relocation will occur in less than ninety (90) days or maximize the potential for a costly legal battle. Additionally, the notice must comply with the requirements set forth in Ind. Code § 31-17-2.2-3, which include but are not limited to: the new address, all telephone numbers for the relocating individual, the proposed move date, the reasons for the move, and a proposed schedule for visitation/parenting time given the new location.3
Objections to the Relocation and Implications. After a notice of relocation is received, a nonrelocating party has sixty (60) days to object to the relocation. It’s important to note that practically speaking, a court does not prevent a relocating parent from moving.4 However, upon receiving an objection to a relocation, a court may set a hearing, and the court can do many things. If the court finds it appropriate, it may issue a new custody order, parenting time order, grandparent visitation order, or child support order depending on the certain situation if the non-relocating parent or party has in fact asked for a modified order. Under the statute, the court may consider the following in issuing such an order:
(1) The distance involved in the proposed change of residence.
(2) The hardship and expense involved for the nonrelocating individual to exercise parenting time or grandparent visitation.
(3) The feasibility of preserving the relationship between the nonrelocating individual and the child through suitable parenting time and grandparent visitation arrangements, including consideration of the financial circumstances of the parties.
(4) Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a nonrelocating individual’s contact with the child.
(5) The reasons provided by the:
(A) relocating individual for seeking relocation; and
(B) nonrelocating parent for opposing the relocation of the child.
(6) Other factors affecting the best interest of the child.
It should be noted that if a party is seeking a change in custody (legal and/or physical), visitation, or parenting time because of a relocation, that party needs to specifically state that in a separate motion or clearly state it in the objection to the relocation. This issue was the subject of a recent Indiana Court of Appeals case. See In re: Paternity of W.R.H., 2019 WL 1105039 (March 11, 2019) (holding that Ind. Code § 31-17-2.2-1 does not allow a court to change legal custody without a specific request to do so by the objecting party).
In summary, a parent thinking about relocation must examine the impact that it may have on their custody and/or parenting time rights, and the same goes for a parent whose co-parent is relocating. The overarching theme in custody and/or visitation matters is what is in the best interest of the child. If a move by one parent will force a child to switch schools, remove them from friends and family, and make the non-relocating parent’s attempts to parent the child difficult, then a court may very well make adjustments to prior custody/parenting time/visitation orders. Dixon & Moseley, P.C. advocates handle relocation cases from all sides throughout the state. We hope this blog post helps you consider the unknown and unique consequences on legal opportunities created by relocation. This blog is written for general informational purposes and is not intended as legal advice or a solicitation for services. It is an advertisement.