Indiana Case: Relocation and Change of Custody

A bit late reporting on In the Matter of the Paternity of: Ba.S. and Br.S; Kimberly C. v. Barry S. due to my hiatus. This is the latest progeny of Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008).

We have a case where mother files notice to relocate and father objects and petitions for change of custody. Trial court gives father custody. Mother argues "the trial court violated her due process rights and its decision runs afoul of public policy concerns."

The Indiana Court of Appeals upheld the trial court.

The facts are as follows:

Mother is the mother of Ba.S., born on January 6, 2002, and Br.S., born on December 16, 2003. Father was adjudicated the children‟s father in an agreed order filed with the trial court on April 11, 2008. In the order, the parties agreed to share joint legal custody of the children, and that Father would “pick up the children from day care on Fridays and the [M]other shall pick up the children from [F]ather‟s care on Sundays. Appellant‟s App. p. 1. On the date the agreed order was filed, Mother resided in Valparaiso, Indiana and Father resided in Maywood, Illinois. Mother‟s and Father‟s extended families generally reside in those areas as well.

In 2008, Mother married Levi A., who had enlisted in the Navy. In May 2008, Levi A. was deployed to a military base in Norfolk, Virginia. On May 15, 2008, Mother notified Father and the trial court that she intended to move the children to Norfolk, Virginia. Father objected to Mother‟s proposed relocation of the children and also filed a Petition to Modify Custody. The trial court appointed George Ivancevich to serve as the guardian ad litem (“the GAL”). Evidentiary hearings on the parties‟ motions were held on June 6, June 28, and August 15, 2008. In his reports and testimony at the hearing, the GAL opined that custody of the children should be modified and Father should be awarded custody.

I have opined before that the age of the children seems an important component in these relocation cases but that component seems a bit absent here. Unfortunately, the Court of Appeals does not directly address this points because mother did not argue such a point.

In some ways the arguments she said are more interesting because they are a bit uncommon. The Court of Appeals made short shrift of her constitutional argument:

We agree that Mother‟s decision to relocate is valid and appears to be made in good faith. But, in her argument, Mother fails to acknowledge Father‟s own constitutional right to parent the children. Mother and Father agreed to joint legal custody in the April 11, 2008 agreed order. In this case, the trial court heard the testimony of both parents and considered the GAL‟s extensive investigation as to whether relocation was in the children‟s best interests. As our supreme court has observed, Mother‟s due process right to travel and parent her children may be impinged upon where such relocation is not in the children‟s best interests. Indeed, decisions as to the custody of children always involve a balance between competing, legitimate parental interests, some of which are constitutional in magnitude, and the trial court must always take those interests into account as it determines whether a change of custody is in the children‟s best interests.

Pages 8- 9 with a footnote omitted. That is my emphasis above and not in the original opinion.

And what was the public policy argument? This is the argument and the Court of Appeals' response:

Finally, Mother argues that “it is violative of public policy to require the wife of an active duty member of the United States Navy to make” the choice of either remaining with her husband while he is on active duty or living apart from her husband but retaining custody of her children. Br. of Appellant at 25. Further, Mother asserts that the trial court‟s conclusion that deployments and possible future relocations would disrupt the stability of the children‟s lives is also a violation of public policy.

We acknowledge the significant sacrifice members of the military and their families make for their service to our country. However, Mother appears to argue that such military service, here by a step-parent, trumps Indiana‟s statutory and common law consideration of the best interests of the children. This is not the case.

Clever but, I think, would have been better made by a parent rather than a step-parent. Every custodial parent relocating from Indiana faces the same choice as by the mother here.

Other than acknowledging the non-custodial parent's constitutional rights, I am not sure that this case gives us any broader insights into what is makes relocation in a child's best interest or not.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.