Friday, February 16, 2007

Thinking of moving? Problems for custodial parents

Custodial parents planning on moving need to give notice of their moving or face penalties.

Last year the General Assembly overhauled the statute on relocation. So far I have not had to deal with it in my practice but with Indiana's economy being what it is, I think I will.

I have one big problem with the statute. For those who do not know, Indiana does not have a legislative history like the United States Congress. Which leaves us Indiana lawyers with seeking a statute's meaning in the plain language of the statute.

I cannot find a definition of relocation. The prior statute had no effect unless the parent relocating moved more than 100 miles from the courthouse where the divorce/paternity case originated. Now all the statute says is: "[a] relocating individual must file a notice of the intent to move with the clerk of the court...."

I read that to mean any move from where the custodial parent lives to another location. This definition of relocation does nothing to change that view. However, The Indiana Law Blog had a post on this last year. That post quoted an article from the Evansville Courier and Press:

The new law is described as an attempt to make Indiana's system more fair to noncustodial and custodial parents alike.

"You could put notice on the doorstep on the way out of town, and you would have satisfied the old statute. It was not a good way to give notice to the other parent of relocation," said Jeffrey Bercovitz, director of juvenile and family law at the Indiana Judicial Center.

That quote lacks any authority before a court but it might have some persuasiveness. When I read IC 31-17-2.2-1(b)(1) ["The distance involved in the proposed change of residence."], I am not persuaded. I see the statute applying as much to move across as to a move to Indianapolis or Dallas, Texas.

So far the Indiana Court of Appeals has not had to interpret the statute. Which leaves me advising custodial parents to give the
required notice whenever they move. The statute penalizes the custodial parent who moves without giving the proper notice:
31-17-2.2-6 (a) If a nonrelocating parent files a motion under section 5 of this chapter, the court, after notice and an opportunity to be heard or after compliance with Trial Rule 65(B), may grant a temporary order restraining the relocation of a child or order the child to be returned to the nonrelocating parent if the court finds:
(1) that the notice required under IC 31-14-13-10 or this chapter was not served in a timely manner and the parties have not presented an agreement concerning a parenting time schedule;
(2) that the child has been relocated without:
(A) the appropriate notice;
(B) an agreement between the parties; or
(C) a court order; or
(3) from an examination of the evidence presented at the temporary hearing, that there is a likelihood that, after a final hearing, the court will not approve the relocation of the child. (b) The court may grant a temporary order permitting the relocation of the child pending a final hearing if the court:
(1) determines that the notice required under IC 31-14-13-10 or this chapter was provided in a timely manner;
(2) issues an order for a revised schedule for temporary parenting time with the child; and
(3) reviews the evidence presented at the temporary hearing and determines that there is a likelihood that, after the final hearing, the court will approve the relocation of the child.
(c) If the court issues a temporary order authorizing the relocating individual to move, in its final judgment, the court must consider factors:
(1) other than; or
(2) in addition to;
the temporary relocation of the child when issuing a final order.
Not giving notice creates more trouble than giving notice. Relocation itself does not create automatic grounds for action by the court. The statute leaves to the parties the option of modifying visitation, custody, child support, or grandparent's visitation order. However, failing to give notice gives the non-custodial parent a leg up on a custody modification case.

I am not sure how the courts will react to a flurry of notices when as custodial parents move from one rental property to another but that is not quite my concern. I see the penalties above as having the potential for creating serious problems for my clients who are custodial parents. That is my chief concern.


todd said...

i was totally screwed by this new the non relocating parent and had a magistrate say this statute was meaningless to him and he then pointed out appeal case baxendale vs reich . and allowed a relocation of the child 160+ miles from all his family, school, community so that the custodial parent could live with boyfriend...< i see my kid 4 days a month now instead of the 14 OVERNIGHTS i had>

...well the supreme court this last week(as you may know) has agreed with the trail court(baxendale vs reich) and has made the first stand on this relocation statute.. i do hope this helps all non relocating persons in the future.

but going in on the new statute did nothing but hurt my case.

talk about getting let down by something that was put in place to help...BOO!

Anonymous said...

I'm going through this now.. by default I would be the custodial parent but since I want to go out of state to school the father thinks he has a chance of getting custody? I've been the one feeding them, changing diapers, buying clothes, teaching them piano, taking to dance lessons -- he sees them when it suits him since he's into his video games. Hopefully they take that into consideration when they determine custody.