Thursday, May 17, 2007

Relocation - brand new case from the Indiana Court of Appeals

The new relocation statute inspired some earlier posts. On May 15, the Indiana Court of Appeals handed down its first opinion on the statute. The case's name is Baxendale v. Raich and the opinion can be found at this link. (PDF format)

The essential facts consist of parents having joint custody but mother had physical custody, mother getting a better job in Minneapolis, and the trial court giving father physical custody. The Indiana Court of Appeals decided that mother ought to have kept physical custody.

The court performs no great explication of the new relocation statute's procedures them but does describe their operation in practical terms. Practical terms meaning the evidence showing that each party's burden was met.

Upon hearing that Raich's business was experiencing financial difficulties in the summer of 2005, she decided to expand her job search. It was only then that she considered the job in Minneapolis that had a starting salary of $135,000 per year. Baxendale has established that the move was made in good faith for a legitimate reason. See I.C. § 31-17-2.2-5(c).

Accordingly, the burden shifted to Raich to show that moving was not in A.R.'s best interests. See I.C. §31-17-2.2-5(d). Raich argues that he "met his burden by proving he can provide more stability and permanence for A.R." Appellee's Br. p. 19. In considering stability in the modification context, our focus is not necessarily on who can provide more stability in the future--that is not to say there are not circumstances in which that is a valid consideration--but generally, our focus is on maintaining the existing custody arrangement so as to provide ongoing stability.

Further, although Baxendale and Raich's relationship is acrimonious, they appear to have maintained a somewhat regular visitation schedule since Baxendale's move. Thus, in considering the factors of Indiana Code Section 31-17-2.2-1(b), A.R. would be able to maintain frequent visitation with Raich even if he relocated to Minneapolis with Baxendale
See pages 8, and 9-10.
The Court of Appeals found that the only grounds for the modification was the mother's move to Minneapolis. Those being the only grounds (there being no specific findings of fact by the court) meant the court abused its discretion.

Some other points of interest with this case:
  1. The usual criteria for custody cases apply and the new relocation statute only provides additional criteria. See pages 5-6 of the opinion.
  2. Joint custody can survive a move out of state and an acrimonious relationship between parents.
  3. Always ask for specific findings.
Of the three, I think I was most surprised by 2. I assumed that the usual statutory criteria for judging the best interests of a child in custody cases applied to relocation cases. As for number three, I think any complicated case needs specific findings of facts and law.

Update 1-16/08: The Indiana Supreme Court issued their decision in the case on January 15, 2008. Reversed the Court of Appeals decision. Supreme Court case is to be found here.

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