Moving Away with Child Custody

Indiana’s Relocation Statute

Relocation:  The Basics/Overview

We are mobile beings.  As such, it is not uncommon to relocate and seek relationships or opportunities in other locales, either nearby or across the country.  This is not really an issue for the intact family or the childless; however, in cases involving children between parents who are no longer together, the obvious changes that result from the relocation of a parent must be addressed.  Indiana Code 31-17-2.2-1 to 31-17-2.2-6 deals with the notice requirements for relocating as well as the standards applied and issues considered in making a determination to either permit or deny the relocation of a child subject to the jurisdiction of the court.  The court cannot forbid a parent from relocating; however, with respect to custody of a child and a non-relocating parent who objects to the relocation of the child, it forms a basis to seek a review and modification of a custody/parenting time order, although a custodial parent’s move out of the current jurisdiction does not create automatic grounds for a change of custody.

For the relocating parent who is not the primary physical custodian, notice of relocation must be provided to the non-relocating parent and the court.  Depending on the distance involved, the existing parenting time schedule may have to be re-adjusted to accommodate distance and travel as well as facilitate continued parent/child relations.  For the relocating parent who is the primary physical custodian, stricter standards are applied, especially if relocating at a distance.  A custodial parent who relocates with the child and fails to adhere to the notice and relocation requirements does so at his or her peril.  Upon motion of an objecting non-custodial parent, the court can order the return of the child or transfer physical custody to the non- relocating parent, at least pending further evidentiary proceedings.

If a non-custodial parent has no objection to the relocation of a custodial parent and child, the two parties can file with the court an agreement stipulating to the re-location.

Moving Away with Child Custody

Relocation:  The Specifics and Procedure

A custodial parent cannot unilaterally relocate with a child.  It may seem easier and tempting to forge ahead with the non-custodial parent unaware and unable to resist, especially if it is certain the non-custodial parent will resist.  However, the adage of obtaining forgiveness being easier than obtaining permission will potentially backfire.  A local change of address which will not disrupt the relationship with the non-custodial parent will not be treated the same as a long distance move.  Nonetheless, in both instances, the relocation notice mandates apply.

Notice.  A relocating parent must file with the court that issued the current custody order a notice of intent to move, or if a custody matter is pending, with the court that has jurisdiction over the pending custody matter.  Notice by registered or certified mail must also be provided to the non-relocating parent at least ninety (90) days before the date the relocating parent intends to move.  The notice must include the following information under Indiana Code 31-17-2.2-3; the intended new address and mailing address, home telephone number or any other applicable telephone number, the date of the intended move, the reasons for the proposed relocation, and a proposed revised parenting time schedule.

If a relocating parent fears providing the required information to the non-relocating parent will create a significant risk of substantial harm to the relocating parent or child, the court may waive the disclosure upon motion of the relocating parent.  However, this information must still be provided to the court.  See Indiana Code 31-17-2.2-4.

Objection to Relocation.  A non-relocating parent must file an objection to the relocation not more than sixty (60) days after receiving notice from the relocating parent.  Once filed, the court will schedule a final hearing to grant or deny the relocation. Pending the final hearing, the court can issue a temporary restraining order or order the return of a relocated child if the notice requirements have not been satisfied, there is no agreement between the parties or no prior court order permitting the relocation.  Conversely, the court may grant a temporary order permitting relocation pending a final hearing if the notice requirements are satisfied, a revised parenting time schedule is established, and there is a likelihood the relocation will be approved following the final hearing.  See Indiana Code 31-17-2.2-6.

If the non-relocating parent fails to timely file an objection with the court, the custodial parent may proceed to relocate without further action.

Burden of Proof.  The custodial/relocating parent must establish the relocation is made (1) in good faith and (2) for legitimate reason.  What is the motivation for the relocation?  Why is the parent relocating?  Is it due to remarriage, job transfer, closer proximity to extended family and a support network?  Will the relocation enable the custodian to stay home and provide full time care and attention to the child?  Is it an attempt to thwart the relationship with non-relocating parent?

If the custodial parent meets the initial burden of proof, the parent objecting to the relocation must establish the proposed relocation is not in the best interest of the child.  In evaluating the not in the best interest of the child standard, the court will look at how the relocation will affect the stability of the child’s life, including continued custody with the same parent.  Of course, the relationship between the non-relocating parent and the child cannot be ignored, and the court will examine the nature and extent of the relationship.  The child’s welfare, not that of either of the parents, is the standard applied.   See Indiana Code I.C. 31-17-2.2-5.

The factors the court considers in determining whether to grant or deny a child relocation include, but are not necessarily limited to those identified in Indiana Code 31-17-2.2-1:

(1) The distance involved in the proposed change of residence.
(2) The hardship and expense involved for the non-relocating individual to exercise parenting time or grandparent visitation.
(3) 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.
(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 non-relocating individual’s contact with the child.
(5) The reasons provided by the:
        (A) relocating individual for seeking relocation; and
        (B) non-relocating parent for opposing the relocation of the child.
(6) Other factors affecting the best interest of the child.

Who is the child’s primary caregiver, the person who cooks his meals, puts him to bed, and cares for him on a daily basis, and what upheaval will be caused to the child if they are separated?  Is the new location safe and family oriented?  Does it offer the same, if not more, of the amenities and opportunities as the current location?  How involved is the child in school and special activities and can the involvement be continued in the new location?  How involved has the non-relocating parent been in the child’s life?  Will the child forget the other parent or be denied a relationship because of relocation?  Obviously a long distance move will make parenting time more difficult, but can it be accommodated so that parent and child can maintain their relationship?  For example, technology allows better long distance communication and interaction, and enables parties to maintain visual and telephonic contact as often as they like.
Will the relocating parent be able and willing to facilitate extended periods of visitation with the non-relocating parent?

Custodial relocation with the child is not per se forbidden, and a court’s determination to grant or deny a relocation will be fact sensitive for each case.  As such, it is important that a parent, whether relocating or objecting, adhere to the statutory notice and evidentiary requirements.  If not only to spare the grief and inconvenience of non-compliance, but also to spare the affected children.

Indiana Property Division 101

Marital Property MediationMarital property division is one of the two major issues of contention between the divorcing spouses, trailing just slightly behind child custody issues.  For childless couples, it is the only issue.  Indiana law presumes all property of the spouses regardless of how it is titled or whether it was acquired before or during the marriage is marital property and subject to the division and distribution of the court.  It also presumes an equal property division absent convincing rebuttal evidence.

Many litigants often, erroneously, believe marital property should be divided based on how it is titled, when it was acquired, who earned it, or who is more entitled to it based on perceived innocence or guilt in the break-down of the marriage.  Although these are factors the court will look at and consider; a party must present more to overcome the presumption of an equal division (50/50) between the parties.

Indiana Code § 31-15-7-5 states, “The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable.”  (The “following factors” will be discussed in further detail below.)

 

What is marital property?

Marital property is sometimes called the marital estate, and the terms are used interchangeably.  Any and all property owned by the spouses either jointly or individually before the final separation of the parties is part of the martial estate.  The final separation is the date of filing for dissolution with the court, unless the parties agree to an earlier date.

Indiana Code §31-15-7-4(a) defines marital property as:

  • Property owned by either spouse before the marriage
  • Acquired by either spouse in his or her own right after the marriage and before the final separation of the parties or
  • Acquired by their joint efforts.

In other words, separate/individual property brought into the marriage becomes martial property.  Property acquired or earned solely by one spouse during the marriage is marital property, even though the other spouse contributed nothing to it.  Gifts and inheritances to one spouse are included in the marital estate.  And it goes without saying that property acquired by joint efforts is marital property.

Parties often argue property they owned before the marriage is their separate property, and therefore immune from the martial estate and division.  Likewise, the same argument is often made for property acquired during the marriage due to one spouse’s greater efforts or perceived separate resources, such as the sale of pre-marital property or employment income.  These arguments; however, will fail attempts at exclusion.  The only way to avoid inclusion of property in the marital estate is to execute a Prenuptial or Post-nuptial agreement identifying which property remains the separate property of each spouse.

How is marital property divided?

Notwithstanding the broad and all-encompassing definition of marital property, there is a distinction between the identity of marital property and its division and distribution.  As such, if a party is concerned the court will designate to his or her spouse any family heirlooms, pre-marital property, gifts, or other property obtained through individual effort, that will not necessarily occur.  Instead, such items of property, although deemed part of the marital estate, can and most likely will be awarded to the party and included as part of his or her share of the equal division of property.

Under Indiana Code §31-15-7-4(b) the court can distribute marital property as follows:

  • Division in kind
  • Awarding property to one spouse and ordering an equitable payment to the non-recipient spouse in one lump sum or installments
  • Order the sale of property and the division of the proceeds, and
  • Order the distribution of delayed benefits after the dissolution.  Delayed benefits include, but are not limited to, investments such as retirement plans or third party settlements or claims arising during the marriage.

If the value of the above property exceeds half the value of the marital estate, the recipient party can either present evidence to rebut the presumption of equal division, or the court could order an equitable payment be made to the other spouse in an amount equal to the value of the property that exceeds half the value of the marital estate.  For example, if the parties have a marital estate valued at $100,000.00 and Spouse A is awarded property valued at $60,000.00 due to the above factors and Spouse B is awarded the remaining property valued at $40,000.00, the court would order Spouse A to pay Spouse B an equitable payment in the amount of $10,000.00 to make the property division even.  Alternatively, Spouse A can argue  the presumptive equal division is not just and reasonable, and therefore request a greater share of the marital estate to eliminate the need for an equitable payment to Spouse B.

What Factors are Considered in Property Division?

Generally, the court will look at the following factors in determining the amount and division of the marital estate and specific items of property.  These factors are not exhaustive or exclusive and you will note the specific considerations for each factor will overlap.

1.  The contribution of each spouse to the acquisition of the property, regardless of    

whether the contribution was income producing. 

To determine the contributions of each spouse to the acquisition of property, the court

will examine the lifestyles and behaviors of the spouses.  Was one spouse, for lack of a better term, a deadbeat during the marriage forcing the other spouse to do all of the work to keep the family afloat?  Did both parties contribute to the function of the family, although in different ways such as one spouse working outside the home to earn income while the other spouse ran the household and cared for minor children?  Did either of the spouses of the parties give up anything for the acquisition of the property?  Was the value of property increased due to the investment, efforts, or labor of one or both spouses?  Did the parties share a joint checking account into which they both deposited their income and paid expenses and debts?

2.         The extent to which the property was acquired by each spouse before the marriage or through inheritance or gift. 

The court will look at who brought what property into the marriage and the length of

time it was owned prior to the marriage.  It will examine the value of the property at the time of marriage and the time of the divorce, along with the amount of equity and debt in the property.  Was the property comingled with other marital property making it difficult to separate?  As for inheritance, was it comingled or kept separate?  Was inheritance used to acquire marital property?  Have marital assets been used to maintain or increase the value of the pre-marital property?

3.         The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.

Here the court will consider each spouse’s financial position when the divorce is final

including the employment and income of one or both spouses, the need for the spouse who cared for the home and children to find outside employment, the solvency of the marital estate, or the undertaking of marital debt by one or both spouses.  The court will also consider tax consequences of property distribution, and whether one party is in a better financial position than before the marriage due to the contributions of the other spouse.

4.         The conduct of the parties during the marriage as related to the disposition or dissipation of their property.

Who was the money manager in the marriage?  Did either spouse dissipate marital assets and commit financial waste through activities such as gambling, an affair, substance abuse, or excessive spending?  Was there financial honesty in the marriage?  Did either spouse segregate income or assets in separate accounts?  Did one spouse withhold assets or funds from the other spouse?  What was the extent of the contributions from each spouse to the joint living expenses?  Did one spouse financially control the other?

5. The earning ability of the parties as related to a final division of property and a final

determination of the property rights of the parties. 

The court will consider the age, health, education and work experience of each

spouse and the employment opportunities available to them.  Does either spouse receive any sort of public assistance or disability?  Did either party give up employment, educational opportunities, or training for better job prospects to manage the home and care for children?  Is either spouse deliberately under employed?

With the foregoing in mind, divorcing parties are always free to determine the division of their property if they can agree and the court is satisfied there has been fair bargaining.  Having a general understanding of how a court defines and determines property division can better enable a party to make informed decisions, communicate with their attorney, negotiate a marital settlement agreement, and/or prepare for a contested hearing.

Divorce Mediation Myths

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How to Choose a Family Law Attorney

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