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.

****
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.

Catching Unasked Questions 2: Relocation, custody, legal separation

Indiana Family Law Resources

I am not sure how many readers take a look at the sidebar because some seem to miss a collection of links I have under the heading of Indiana Family Law Resources.

When I created this list, my thought was to create a mini-portal for the most important sources for Indiana family. That does not work very well if no one notices that the information is here.

Nor is it really much use to those using RSS feeds or who have an e-mail subscription.

Every parent should bookmark the first three links.

• Indiana's Parenting Time Guidelines
• Indiana Child Support Guidelines
• Indiana's Online Child Support Calculator
• Indiana Trial Courts and Clerks
• Indiana's Family Law and Juvenile Law Code
• Indiana Rules of Trial Procedure
• Indiana Rules of Appellate Procedure

If you are looking for a specific trial court, then go to Indiana Trial Court and Clerks. This page is maintained by our Indiana Supreme Court. Find the county and this will take you a page showing contact information for each court in a county, the judge's name, a map to the courthouse, and a link to the county's local rules.

Indiana's Family Law and Juvenile Code takes you to Title 31 of the Indiana Code. Here you will find the statutes on marriage, annulment, divorce, parenting time, custody, paternity. child support, and more.

The Indiana Rules of Trial Procedure contains all the rules needed in handling a case procedurally (as opposed to the substance found i the Guidelines and statutes). Not all apply to family law - such as anything dealing with jury trials - but these need knowing for trying a case and they apply in all counties.

Indiana Rules of Evidence are those rules about what is relevant evidence and how we get that evidence before a court. Don't follow these and you do not get your case made.

Indiana Rules of Appellate Procedure are the rules on how to create and handle an appeal in Indiana's Court of Appeals and Supreme Court.

Well, I hope this helps. Bookmark the specific sites or come back here - these will be here.

Relocation - Comparing Indiana, Florida and Illinois

And while I have been critical of Indiana's relocation statute for what I consider bad policy, I think we may be a bit better off than Illinois.

(750 ILCS 5/609) (from Ch. 40, par. 609)
Sec. 609. Leave to Remove Children.)
(a) The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.
(b) Before a minor child is temporarily removed from Illinois, the parent responsible for the removal shall inform the other parent, or the other parent's attorney, of the address and telephone number where the child may be reached during the period of temporary removal, and the date on which the child shall return to Illinois.
The State of Illinois retains jurisdiction when the minor child is absent from the State pursuant to this subsection.
(c) The court may not use the availability of electronic communication as a factor in support of a removal of a child by the custodial parent from Illinois.
(Source: P.A. 96‑331, eff. 1‑1‑10.)

Indiana's statute involves burden shifting:

IC 31-17-2.2-5
Motion to prevent relocation; burden of proof
Sec. 5. (a) Not later than sixty (60) days after receipt of the notice from the relocating individual under IC 31-14-13-10 or this chapter, a nonrelocating parent may file a motion seeking a temporary or permanent order to prevent the relocation of a child.
(b) On the request of either party, the court shall hold a full evidentiary hearing to grant or deny a relocation motion under subsection (a).
(c) The relocating individual has the burden of proof that the proposed relocation is made in good faith and for a legitimate reason.
(d) If the relocating individual meets the burden of proof under subsection (c), the burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child.
(e) If the nonrelocating parent fails to file a motion under subsection (a), the relocating individual who has custody of the child may relocate to the new residence.

I would also point out that Illinois does by statute what Indiana accomplishes in our Parenting Time Guidelines.

5. Emergency Notification. For emergency notification purposes, whenever a child travels out of the area with either parent, one of the following shall be provided to the other parent: An itinerary of travel dates, destinations, and places where the child or the traveling parent can be reached, or the name and telephone number of an available third person who knows where the child or parent may be located.

And there is this story from Florida: Parental Relocation: What a Florida Parent Hoping to Relocate Their Children Needs to Know in Advance.

Yes, the Indiana relocation statue does look a bit better when compared to elsewhere. That does not mean it is still the best we could have.

Indiana Parenting Time: Taking the Child Out of State

What does a parent need to do when taking the child out of Indiana for vacation?  The Indiana Parenting Time Guidelines state that it does not matter whether the custodial or non-custodial parent takes the child out of state: 

5.  Emergency Notification.  For emergency notification purposes, whenever a child travels out of the area with either parent, one of the following shall be provided to the other parent: An itinerary of travel dates, destinations, and places where the child or the traveling parent can be reached, or the name and telephone number of an available third person who knows where the child or parent may be located.

The parent taking the child out of state does not need the permission of the other parent.  Certainly no notarized permission from the other parent is necessary.  Nor can the other parent just refuse the other parent taking the child out of state - thinking like this may signal confusion with relocation.  (See my archive of articles on relocation; link to the right of screen and down).

No Cookie Cutter Cases

This came to me from an e-mail and I thought this person has figured out one thing that eludes a lot of people:

The reality is that each case is going to be unique and there are no "cookie cutter" answers when it comes to relocation.

Substitute "custody" or "divorce" or "child support" or "parenting time" for "relocation" and the truth of the statement remains undiminished.

Family law recognizes the people differ from another makes for a variety of cases.  The statutes provide only a generally outline of the possibilities available to the courts and the parties.  The judge bases a judgment on the evidence and counsel's arguments comes from applying the general rules to the specifics of each.  When the parties think the trial judge has incorrectly applied the law to the facts, there is the option of an appeal.  Even then the law on appeals recognizes the variety of people and cases by using the abuse of discretion standard -  if there is any evidence supporting the judge's decision, then the Court of Appeals upholds the trial judge's decision. (Put most simply, an abuses of discretion occurs when  the trial judge appears to have gone far into left field.)

All this may explain why this blog is not set up for answering specific questions.  The facts determine much and no way does anyone ever give all the facts.  They are a subtle thing these facts.

It may also explain why you cannot find a quick, specific answer to what appears to you to be a simple question.  They do not exist.  What does exist are the facts of your case, the general rules found in the statues and Rules, and the less general rules found in the case law.  You who are looking for specific, simple answers are going about it wrong.  You need to do what us lawyers do:  study the statutes, study the Rules, study the case law, and think of how all this applies - think about the whole range of possibilities.

More on Using School Information for an Indiana Custody or Relocation Case

Although The Anderson Herald Bulletin's ISTEP+ scores show wide gaps among schools pertains to Madison County, this sort of same information is available for other schools.

ANDERSON — Three of Madison County’s five largest school systems performed at or above the state average on ISTEP+ English and math results released Wednesday by the Indiana Department of Education.

South Madison had the highest overall test scores for school corporations in the county, followed by Frankton-Lapel and Alexandria schools, all of which met or exceeded the statewide average in math and English.

Meanwhile, Anderson and Elwood schools on the whole continued to underperform statewide averages on standardized tests given to students in grades 3-8.

None of the school systems approached Superintendent of Public Instruction Tony Bennett’s goal of 90 percent of students passing ISTEP+.

New elements of the ISTEP+ make comparisons to previous years difficult.

ISTEP+ was administered in spring instead of fall, as past tests were. ACS interim Superintendent Lennon Brown said the tests measure student aptitude at their current grade level, whereas past ISTEP+ tests measured student achievement at the grade immediately below their current level.

Also, science testing was expanded to include grades 4 and 6, and a social studies test was given for the first time in grades 5 and 7.

Corporationwide, Anderson Community Schools students had a pass rate of 58.5 percent on the English and language arts portion of the test, well below the state average of 70.8 percent.

In math, ACS students averaged a pass rate of 60.2 percent compared with 72 percent for the average Indiana school system.

I think it could be useful for those seeking information on the qualities of a particular Indiana school.  See my Using School Information for an Indiana Custody or Relocation Case for what I wrote earlier on this subject.

Relocation - Ideas from Outside of Indiana

I ran across What a Move May Mean for the Child very late last night. Still chewing over it this morning. I suggest that everyone take a crack at reading this article from the GPSolo Law Trends & News. (And thanks to South Carolina Family Law Blog for posting about this article in its How Does Relocation Impact Children of Divorced Parents?).

Too long, too thick for condensing easily, I will pick on this paragraph:

Standards for permitting relocation are not uniform throughout the country. Some courts consider reasons given for the move and its potential interference with the other parent’s visitation before determining the best interests of the child. But in New Mexico, for example, the best interests of the child is directly linked to the determination of which parent is the primary attachment figure.

I think it is safe to say that Indiana's standards for relocation are in flux. For how much of a flux, just follow the "relocation" link below.

Indiana does not explicitly recognize a primary attachment figure as an issue in determining the child's best interests (see IC 31-17-2.2-1 and IC 31-17-2-8) but I would not discount the idea as not being implicitly included in the statutory guidelines. More importantly focusing on this primary attachment concept misses the larger and more important point: the psychological effects of moving from home.

If you plan on moving out of state, see the other articles under the "relocation" link below. And read the cases. I had a rather nice lady call the other day who was scared to death to move, she had read the articles but not the cases, and I had to point the differences in the facts. I cannot recall any of the cases mentioning psychological evidence.

If you have a relocation case, I suggest printing off What a Move May Mean for the Child and giving it to your article. Yes, these cases just got a bit more expensive if we include a psychological evaluation but I now think such an evaluation may be very important.

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.

Revised Post: Another Relocation Form

I found out today that the former link for the PDF was wrong. Fixed that.

I wrote a bit of long post on how to write a relocation petition here but I recently found that Vanderburgh County has posted a form online for relocation petitions. It is in PDF format and can be found here.

New Indiana Case: Swadner v. Swadner Part III (Relocation)

I dealt with the child's names and contempt issues of Swadner v. Swadner (PDF format) in Swadner v. Swadner Part I (Children's Names) and joint custody in Swadner v. Swadner Part II (Joint Custody). I come now to what is for me the more troublesome part of the case.

I have written a bit on relocation cases. You can find the archives for these case here. Swadner recites the law at page 13 - 14 of the opinion. My view has been that Baxendale made relocation cases harder as the child gets older. Swadner demonstrates how the relocation statute might apply to infants. Pay attention to the facts and reasoning that follow:

Mother established that the proposed relocation was made in good faith and for a legitimate reason. Mother desired to move from Plainfield to Fort Wayne because she planned to reside with her parents. Her parents were willing to watch the children while she worked. She also had an offer for employment. Although her pay would have been less than her rate of pay at her current job, Mother would have had minimal living and child care expenses. Mother intended to reside with her parents until she had paid off all of her debts.

However, Father presented evidence that it would not be in the children‟s best interests to allow Mother to relocate the children to Fort Wayne. The GAL testified that in her opinion, Mother should not be allowed to relocate the children. The GAL stated that Mother‟s “refusal to allow [Father] any overnight parenting time with [E.S.S.] as well as her alleged failure to allow [Father] telephone access to [E.G.S.] is a good predictor of what he can expect in the future as far as [Mother‟s] willingness to foster and encourage [Father‟s] role in the kids [sic] lives.” Tr. p. 17. She also testified that Mother‟s conduct “has been to thwart” Father‟s parenting time with E.S.S. Tr. p. 18.

I object to the relocation statue because it gives the non-relocating parent a chance to beat up on the other parent more than it protects the non-relocating parent's relationship with their child. On the facts presented by the Court of Appeals, I have to say that I cannot object to this decision. Mother's actions regarding parenting time were just wrong if she wanted to win a relocation case.

Both sides of a relocation case need to think hard about how their treatment of one another and the child fit into Swadner. The facts have also brought to mind parental alienation syndrome. We might have a tool to deal with that problem in our relocation statute (which is what it should be used for). You can find my articles on parental alienation syndrome by putting that term into the search box at the top of the page.

Points on a Pyschological Evaluation for a Relocation Case

I find some good points and several things to think about in the Utah County Psychological Assessment's Relocation Child Custody Cases:

"Here are some of the important points that need to be covered in a child custody evaluation that deals with relocation. Age of child (infants and toddlers will forget the noncustodial parent and not form good attachment with them if they move) but elementary age children and teenagers seem to adjust better. It is not the frequency of visits with the noncustodial parent that is important, but the total amount of time and the quality of that time with them. Children do better if the custodial parent encourages visiting time with the noncustodial parent and makes it happen. There are many harms associated with relocation and several risk factors like parental psychopathology, child's previous poor adjustment to stressors, and increased rates of not graduating from high school, teen pregnancy, and other adjustment problems. However, there are also protective factors that can modulate or mitigate these harms. The most important protective factor is the relationship with the residential parent. Another is how often they are able to see their non-residential parent (more quality contact is better). Also, their ability to quickly develop new 'social capital' in the new location helps mitigate harm. Some important authors to read in this area are William Austin and Joan Lamb."

I see in this paragraph a way to deal with Indiana's relocation statute and our Baxendale case. Psychological evaluations have been little used here - the costs to the client and our local economy have made them a bit out of reach for most - and I am not so happy about the one sitting on my desk. (I am put off by tepidness of the recommendation - it leaves to the court the making a decision of what is in the child's best interests. The actual evaluation is good for my client, but for the cost we would have liked a knockout punch. Such is the practice of law.) For those who can afford the cost, a psychological evaluation may be more than useful. Something to think about.

Relocation: Definitions of Relocating individual and Relocation

Recently, I was looking through the family law definitions in the Indiana Code. I have written a bit about Indiana's relocation statute (follow the "relocation" label below to find the others), but I am not sure we have take a good look at these definitions.

IC 31-9-2-107.5
"Relocating individual"
Sec. 107.5. "Relocating individual", for purposes of IC 31-17-2.2, means an individual who has or is seeking:

(1) custody of a child; or
(2) parenting time with a child;

and intends to move the individual's principal residence. The term does not include an individual granted visitation rights under IC 31-17-5.

For example, here is IC 31-17-2.2-1:

(a) A relocating individual must file a notice of the intent to move with the clerk of the court that...

You have parenting time and want to relocate, you need to file a notice with the court. You have custody and want to relocate, you need to file a notice with the court.

I take the word "seeking" as meaning having filed a custody or parenting time petition or a divorce petition or a paternity petition. That fits into the following language from IC 31-17-2.2-1(a):

(1) issued the custody order or parenting time order; or
(2) if subdivision (1) does not apply, has jurisdiction over the legal proceedings concerning the custody of or parenting time with a child

The parties excluded from this are grandparents, they can move without filing a notice of relocation.

To date, there is only one published case that mentions this statute: Baxendale. There are two NFP cases that use the exact same quote from Baxendale: Jodie Patrick v. Brian Patrick and Wendy Lyn Carr v. Jeffrey Scott Reagan. See what I have written about Baxendale here and here.

Another statute needing a bit more attention is IC 31-9-2-107.7:

"Relocation"
Sec. 107.7. "Relocation", for purposes of IC 31-17-2.2, means a change in the primary residence of an individual for a period of at least sixty (60) days.
As added by P.L.50-2006, SEC.5.

Okay, it does get mentioned in Baxendale. Just in passing to note the tripwire for a relocation case is no longer distance but duration. The Patrick and Carr v. Reagan contain the citation in the same quotes from Baxendale that containing IC 31-9-2-107.5.

This definitions importance lies in limiting the cases that can be filed and I would find it hard to believe a case will turn on this definition. Except for the phrase "change in primary residence" and even my imagination balks at a where that might apply in the real world.

For those wanting to leave the state for less than 60 days, it does give some reassurance that they do not need to file a notice of relocation. (It does give rise to obligations under the Parenting Time Guidelines but that is another matter, another post).

Problems with Relocation - from a participant

The following came in an e-mail to me. I promised the writer anonymity and minimal editing. I think she expresses very well the problems with the new relocation statute. My opinion remains that the statute as it is being interpreted creates tension between the custodial parent leaving Indiana for a better job and better life for the child or avoiding the costs of a custody fight and staying in Indiana. I may also repeat myself but much depends on the evidence presented to the court on the issue of the child's best interests.

I am a mother of four children, one that is an adult now and three that are not. My children do not have the same fathers. I lost custody of one of my children, because I chose to move to Florida, where I was offered a wonderful opportunity working for Mayo Clinic, in Jacksonville.

My ex-husband, is an alcoholic and breaks the law constantly. My son, had ADHD, and anxiety among many other comorbidities My son's father took, him off his meds and has done numerous things that are just unbelievable.(kept things that I had sent him in the mail, illegally recorded phone conversations between my other two children, myself and our son, kept him from my family and so on).

I had sole custody to begin with, my ex, had been held in contempt numerous times for not giving him his meds, drinking around him and many things. But, yet, since I chose to relocate, and even had the court's permission, to take my son with me, they turned around and gave him to his father. This all happened two years ago. My son has cried and cried for me since that time.

I ended up having to get a no contact order against my ex, because, in his drunken state, he would call and threaten to kill me.

The attorney that I have now, has finally gotten me a court date. He told me to get custody back, I would have to move back here to Indiana, so here I am.

I left a very good job, with a very reputable, company, along with my fiance in Florida. My children want to live in Florida and I cannot get married, until I am allowed to move back to Florida. Two of my children are miserable here! My son that I am fighting for, is very angry at his father, but is also scared of him.

***
All the court system did, was mess up my children and give my ex-husband the authority to control my life! How is it fair that the courts can allow him to do this? In my opinion, I have no rights to privacy or freedom to live where I want to live. I feel like I am in prison.

Is there any way that I can leave this state and take my son, along with his brother and sister, whom he loves very much?

If you plan on relocating from Indiana and need a lawyer, please give me a call.

Form: Verified Notice of Intent to Relocate Pursuant to Indiana Code 31 -1 7-2.2

How to create a Verified Notice of Intent to Relocate? First you have to read Indiana Code 31 -1 7-2.2. That is true of just about everything that is filed with a court in a family law case.

IC 31-17-2.2-1(a) tells where the relocating individual must file a notice of the intent to move and to send a copy of the notice to any nonrelocating individual.

If a party (that is the parents) want a hearing, then IC 31-17-2.2-1(b) requires the party wanting a hearing to ask for one.

IC 31-17-2.2-3 sets out the information requirements of the Notice.

(2) provide the following information in the notice:
(A) The intended new residence, including the:
(i) address; and
(ii) mailing address of the relocating individual, if the mailing address is different than the address under item (i).

Which translates to something like this:

3. I have moved my principal address to 10616 Whatever St., Whatever City, Whatever State, Whatever Zip Code.

Then the statute speaks of telephone numbers:

(B) The home telephone number of the new residence.
(C) Any other applicable telephone number for the relocating individual.

Which translates to something like this:

4. I do not have a land line at my home address; or my landline number is ###-###-####.

5. My cell phone number is: ###-###-####.

Then the statute has:

(D) The date that the relocating individual intends to move.

Which translates to something like this:

6. I moved into my new residence on December 1, 2007.

Then there is from the statute:

(E) A brief statement of the specific reasons for the proposed relocation of the child.

Which can start like the following but then it must say why the move is being made:

7. The specific reason I moved to the above listed address is:

Then the statute requires a statement of what changes are needed:

(F) A proposal for a revised schedule of parenting time or grandparent visitation with the child.

Which can read like the following or state reasons for a change:

8. I believe no revision to the parenting time schedule are required because of the
ages of the children.

The statute then requires two notices must be included:

(G) A statement that a parent must file an objection to the relocation of the child with the court not later than sixty (60) days after receipt of the notice.
(H) A statement that a nonrelocating individual may file a petition to modify a custody order, parenting time order, grandparent visitation order, or child support order.

The following contain as good a notice as any other:

9. If the “non-relocating individual” (as defined in INDIANA CODE § 31-9-2-84.6)
objects to relocation of the Petitioner, the non-relocating individual must file an objection with the Court within sixty (60) days after receipt of this Notice.

10. The “non-relocating individual” (as defined in INDIANA CODE § 31-9-2-84.6) may file a petition to modify the present custody order, parenting time order, or child support order.

Sign it before a notary and file it with the court, serve a copy on the non-relocating party and that is it.

Family Law Discovery: Depositions

Depositions get little used in this area for family law cases. I see them more often in my business cases where the clients are more able to afford the costs of a deposition.

What are depositions? Depositions are a witness being put under oath and asked questions by the lawyers in front of a court reporter. The court reporter later creates a transcript of the questions and answers which can then be used at a hearing.

Depositions have two purposes. The first being the discovery of information - depositions are part of the discovery tools. (See Indiana Trial Rules 30 - 32). However, I think the other purpose is of more importance: locking in the witness' testimony before a hearing. Indiana Trial Rule 32 sets out all the uses of a deposition at trial, but I think most of us think far beyond 32(A)(1):

Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

Updates in Michigan Family Law has a list of when to use depositions in Depositions | Helpful tool in some divorces cases. I find myself in agreement with the list as being the ideal. Too bad, the ideal is not often achievable.

What is the likelihood of a case going to trial? No case should ever be tried without your deposing the other side or their key witness(es).

I cannot remember the last time that I had a deposition in a family law case that went to a hearing. Certainly more than fifteen years. I have also lost track of the number of divorces and support hearings and custody cases that went to trial in the past twenty years. I cannot think of better indication of our local economy than this - low asset, middling income divorces.


1. What is the likelihood of “fraud” occurring with respect to income or assets which might need to be addressed in further discovery or even post Judgment.

I worked with another lawyer several years ago on a big asset case. Assets were being questioned and the assets were large. Depositions were conducted but this case was the exception to our local norm of poorly heeled divorce clients.


2. If opposing counsel or opposing party is “blocking” on settlement or addressing significant issues, depositions are a wonderful opportunity to get all 4 people together at the same time and make some meaningful practice.

This point is the only one I find myself disagreeing with. I have also found that setting the matter for hearing has the same effect. I know one attorney known for stalling a case, scheduling a deposition will make little difference to his tactics. Appearing before a judge does sharpen one's mind.


3. How are both opposing counsel and opposing party going to handle themselves at trial? Don’t you want to know what “makes them tick” so you can deal with them in court ?

Here is one I never thought of, and it does give me something to think about. I have gotten used to most of my local opponents, that I can prepare my clients for cross-examination.


4. Are the “stakes” high enough? It would be very hard to imagine a Custody case or a 100-mile-rule case where depositions would not be critical.
   

This last one asks the important question. I would add another question (in Interrogatories) about the grounds for the parties' position on custody. Then I would consider the need for a deposition. I am hard-pressed to see where a deposition would have changed the outcome of but one custody hearing in the past twenty years. I also cannot think of a case where the opposing parties' Interrogatory answers did not give us sufficient information for trying the case.

Yet, I tempted to believe that a deposition might lead to a shorter hearing time for our custody hearings. Not by themselves but in conjunction with a Request for Admissions. This is a thought that came to me as I sit here writing and needs some further thought.

Depositions might have more use with Indiana's relocation statute. As I read the statute and the Baxendale case, factual details will be at the heart of these cases and less of opinions about what is the child's best interests.

I do not want to let anyone think that depositions are not useful tools. Ms. Hannah makes the same point in a different way:

Depositions are certainly not required in every case or even most cases or even 70% of cases… however as to the remainder they are absolutely critical, mandated, and – arguably – the standard of practice requires them.

My fee agreements include notice to the client that they may be necessary. However, they are a tool and one needs to know when and how to properly use a tool.

Relocation - Recapping and an Update

Recently, someone commented that they were going through a relocation case. The custodial parent (the mother) moved out of state. She wrote that she had been the one feeding them, changing diapers, buying clothes, teaching them piano, taking to dance lessons -- that he saw them when it suited him. She hoped the court would take that into consideration.

I am not sure that the court has to take that into consideration. I have posted many articles on the subject of relocation. If you are coming late to the discussion, you need to read them. You can see all of the relocation articles by clicking on "relocation" below next to "Labels". As of today, I say the important ones are: Child Custody and Relocation: New Indiana Supreme Court Case, Child Custody and Relocation: Follow up to "New Indiana Supreme Court Case", and Order Amending Indiana Parenting Time Guidelines.

Read the Baxendale opinion from the Indiana Supreme Court. The first articles mentioned above deal with this case. Baxendale will be the leading case on relocation and people need to know about this case.

The move itself acts as grounds for a modification of custody. What the trial courts will be looking at is the impact of the move on the child and the child's relationships.

To what extent non-custodial parents use this statute to beat up on custodial parents is an issue that remains in the future. I put into this category the case described in my first paragraph above.

Here is my best advice about relocation: before any move, talk to an attorney!

Order Amending Indiana Parenting Time Guidelines

Our County Clerk distributed this last week after being ordered by the Indiana Supreme Court on March 28.

At this point, I see two things that need attention. First, the amendment brings the Parenting Time Guidelines in congruence with the parenting time statute. Second, the Guidelines make clear that notice must be given by the non-custodial as well as the custodial parent.

One other thing - this Order appears nowhere on the Indiana Supreme Court site for orders! The principle informing the Parenting Time Guidelines was that the parents were to use them without the necessity of a lawyer but this amendment is not publicly disseminated via the Internet? Please feel free to pass along this post to any persons you think will find it useful.

ORDER AMENDING INDIANA PARENTING TIME GUIDELINES

Under the authority vested in this Court to provide by rule for the procedure employed in all courts of this state and this Courts inherent authority to supervise the administration of all courts of this state, Indiana Parenting Time Guidelines Section I.(E)(4) is amended to read as follows (deletions shown by striking and new text shown by underlining):

INDIANA PARENTING TIME GUIDELINES

SECTION I. GENERAL RULES APPLICABLE TO PARENTING TIME

4. Relocation. When either parent or other person who has custody or parenting time considers a change of residence, a 90 day reasonable advance notice of the intent to move must_ shall be provided to the other parent or person so they can discuss necessary changes in the parenting schedule as well as the allocation of transportation costs in exercising parenting time which may result from the move.

Commentary

1. Impact Of Move. Parents should recognize the impact that a change of residence may have on a child and on the established parenting time. The welfare of the child should be a priority in making the decision to move.

2. Indiana Law. Indiana law ( Ind. Code § 31 14 13 10 and Ind. Code § 31-17-2.24) requires all individuals who have (or who are seeking) child custody or parenting time, and who intend to relocate their residence to provide Notice to an individual who has (or is seeking) child custody, parenting time or grandparent visitation. The Notice must be made by registered or certified mail not later than 90 days before the individual intends to move. The relocating parties Notice must provide certain specified and detailed information about the move. This information includes: the new address: new phone numbers: the date of the proposed move: a stated reason for the move: a proposed new parenting time schedule: and must include certain statements regarding the rights of the non-relocating party. The Notice must also be filed with the Court. The notice is required for all proposed moves by custodial and non custodial parents in all cases when the proposed move involves a change of the primary residence for a period of at least sixty (60) days. This is true even when a person plans to move across the street or across town, and when a party plans on moving across the state or the country, or to another country that if a custodial parent intends to move outside Indiana, or more than one hundred (100) miles from the individual’s county of residence, a notice of intent to move must be filed with the clerk of the court that issued the custody order, and a copy of the notice must be sent to the other parent.

***

This amendment shall take effect immediately.

The Clerk of this Court is directed to forward a copy of this Order to the clerk of each circuit court in the state of Indiana; Attorney General of Indiana; Legislative Services Agency and its Office of Code Revision; Administrator, Indiana Supreme Court; Administrator, Indiana Court of Appeals; Administrator, Indiana Tax Court; Public Defender of Indiana; Prosecuting Attorneys Council; Indiana Supreme Court Disciplinary Commission; Indiana Supreme Court Commission for Continuing Legal Education; Indiana Board of Law Examiners; Indiana Judicial Center; Division of State Court Administration; Indiana Judges and Lawyers Assistance Program; the libraries of all law schools in this state; the Michie Company; and the West Group.

The West Group is directed to publish this Order in the advance sheets of this Court.

The Clerks of the Circuit Courts are directed to bring this Order to the attention of all judges within their respective counties and to post this Order for examination by the Bar and general public.

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.

Child Custody and Relocation: New Indiana Supreme Court Case

I reported on the Baxendale v. Raich Court of Appeals decision in Relocation - brand new case from the Indiana Court of Appeals. Yesterday, the Indiana Supreme Court issued its opinion upholding the trial court and reversing the Indiana Court of Appeals.

I have not had time to read and digest the opinion yet. For now, take a look at the report from The Indiana Lawyer, Courts may modify custody upon relocation:

"Trial courts are not required to order a change in custody upon a parental relocation under a 2006 Indiana statute, the Indiana Supreme Court decided today. The high court ruled trial courts are allowed to modify custody arrangements at their own discretion."

I think I am safe in saying anyone moving out of the State of Indiana with children needs to know about this case.

1/20/2008 Update: I finally reviewed the case, see Child Custody and Relocation: Follow up to "New Indiana Supreme Court Case"