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.