Child Custody and Relocation: Follow up to "New Indiana Supreme Court Case"

A day late but finally a report on Baxendale v. Raich I promised in Child Custody and Relocation: New Indiana Supreme Court Case.

Mother (Baxendale) gave notice of her intent to move from Indiana to Minnesota. Father petitioned for a change of custody based on the move. The Indiana Court of Appeals (Baxendale v. Raich, 866 N.E.2d 333, 335 (Ind. Ct. App. 2007) reversed the trial court on the custody issue as being an abuse of discretion. The Indiana Supreme Court took transfer and so we have the first interpretation of our new relocation statute from our Supreme Court.

The Indiana Supreme Court found that the usual requirement of a substantial change in circumstances of IC 31-17-2-8 no longer applies in relocation cases but moves the substantial change requirement to IC 31-17:

..Because consideration of the new factors might at least theoretically change this balance, the current statutory framework does not necessarily require a substantial change in one of the original Section 8 factors. Finally, section 31-17-2.2-2(b) of the relocation chapter expressly permits the court to consider a proposed relocation of a child “as a factor in determining whether to modify a custody order.” Because section 31-17-2.2-1(b) already contains a list of relocation-oriented factors for the court to consider in making its custody determination, section 31-17-2.2-2(b) seems to authorize a court to entertain a custody modification in the event of a significant proposed relocation without regard to any change in the Section 8 factors....

I think this means the relocation itself serves as grounds for modifying custody. I wrote about this possibility in my article More on Relocating and Custody - Timeline for giving notice. Justice Boehm writes that relocation does require a modification of custody:

Valerie is correct that the fact of relocation alone does not of itself require a change in custody. However, the circumstances surrounding a relocation can create substantial changes for the child, including changes in the factors described in Section 8 and also those provided by the relocation chapter. Evidence of the circumstances surrounding this proposed relocation was presented at trial. There are several factors, some more persuasive than others, evidenced in the record that the trial court could have found to support a change in custody to permit A.R to remain in Valparaiso...Modification is permissible because of substantial changes in A.R.’s interaction with his father, grandmother, and brother, and his adjustment to school and other activities, irrespective of A.R.’s unrecorded wishes.

People moving out of the State of Indiana having custody of their children need to consider whether they will face a successful custody modification from the non-custodial parent. They need to meet with a lawyer and discuss the move's effect on the child. The discussion should take into account this paragraph from the opinon:

The fundamental point recognized in Lamb under the 1985 statute is that a relocation may or may not have significant effects on the child’s best interests. 600 N.E.2d at 99.... This observation remains valid under the current relocation chapter. Similarly, the effect on the child’s relationships with others will vary widely with the individual circumstances of the child and the significant individuals in the child’s life. We therefore adhere to the view under the current statute that relocation may or may not warrant a change of custody.

Considering reports on more people leave Indiana than move in, this statute may be providing a lot of litigation over the years.

This opinion does relieve me of one concern about the new relocation statue. I read the statute as giving the non-custodial parent grounds for filing a custody modification petition whenever the custodial parent moved - even if it were less of a distance than the old relocation statute's 100 mile radius. Justice Boehm's opinion indicates such a petition would not get very far:

...In most cases the need for a change in a Section 8 factor is likely to be academic be-cause a move across the street is unlikely to trigger opposition, and a move of any distance will likely alter one of the Section 8 factors....

The opinion does address a constitutional law issue, Mother's federal constitutional right to travel. (Opinion at 8-10). The Indiana Supreme Court adopted the balancing test of the Colorado Supreme Court from In re Marriage of Ciesluk, 113 P.3d 135, 146 (Colo. 2005). Justice Boehm applies the test without explaining its components:

...In the custody context, Indiana’s statutes reflect these concerns by considering whether the relocation is indeed bona fide, and explicitly acknowledging the child’s interests and the effect on nonrelocating persons, including a nonrelocating parent. Valerie’s reason for relocating certainly appears valid, but this is not a case, as Valerie argues, where she is unable to take employment out of state “for fear that the state will take her child.” Under the terms of this final custody order, Valerie retains significant involvement with A.R. A.R.’s interests in continuity of education and contact with other family members and Sam’s interest in parenting A.R. are significant and justify the trial court’s custody order.

I find no surprise in how the Indiana Supreme Court handled the constitutional issue.