Indiana Relocation and Modification of Custody Factors

We now have two different panels of the Indiana Court of Appeals agreeing that a trial court must consider the child custody modification criteria listed under the relocation statutes (Indiana Code 31-17-2.2-1 through -6) as well those under the child custody statute when dealing with a relocation/modification case.

Wolljung v. Sidell, 891 NE 2d 1109, 1113 (Ind.App. 2008) sets out the issue like this:

In relocation cases, there is an interplay between the custodial modification statute, Indiana Code Section 31-17-2-21, and the relocation statutes, Indiana Code 31-17-2.2-1 through -6. See Baxendale, 878 N.E.2d at 1256-57. While there is some overlap between the two statutes, both are in play and must be considered. Id. at 1257. Given the specific command of the legislature as stated in the relocation statute, the trial court is required to take into account all of the factors under Section 31-17-2.2-1(b). The court cannot do so without such evidence in the record. Thus, the parent seeking to modify a custody order due to the other parent's relocation must present evidence on each of the statutory factors. It does not appear from the record of the hearing or the order that the parties or the trial court addressed each of the factors listed in Indiana Code Section 31-17-2.2-1(b), at the hearing on Father's motion to modify custody.

The second case being IN THE MATTER OF PATERNITY OF JJ puts the matter this way:

Citing Baxendale and Wolljung v. Sidell, 891 N.E.2d 1109 (Ind. Ct. App. 2008), Mother argues that the trial court committed reversible error by failing to consider all the enumerated factors in the relocation statute. When a motion to modify custody is filed in response to a notice of intent to relocate, the trial court is required to consider the factors listed in Indiana Code section 31-17-2.2-1(b). Wolljung, 891 N.E.2d at 1112.

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Noting the interplay between the custodial modification statute and the relocation statutes, and the specific command of the General Assembly as stated in the relocation statute, our court concluded that the trial court is required to consider the enumerated factors listed in section 31-17-2.2-1(b), and the court cannot do so without such evidence in the record. Id. Therefore, "the parent seeking to modify a custody order due to the other parent's relocation must present evidence on each of the statutory factors." Id. Because the record in Wolljung did not demonstrate that the parties or trial court fully considered or took into account the requisite statutory factors, we remanded the case to the trial court with instructions to conduct another hearing on Father's motion to modify custody and to hear evidence on each of the statutory factors. Id.

We are compelled to reach the same result in the case before us. First, we observe that the trial court's order does not lead us to the conclusion that the court considered each factor listed in section 31-17-2.2-1(b). As Mother notes in her brief, the trial court's order does not address the hardship and expense involved for Father to exercise parenting time, the feasibility of preserving the relationship between Father and J.J. through suitable parenting time, the financial circumstances of the parties, and whether Mother has engaged in a pattern of conduct to either promote or thwart Father's contact with J.J. See Br. of Appellant at 17; Appellant's App. pp.4-5.

(Curiously, the Google Scholar version lacks a West citation but the slip opinion shows that case is For Publication).

Indiana Code Section 31-17-2-8 reads as follows:

IC 31-17-2-8
Custody order
Sec. 8. The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.