Relocation is a legal issue the custodial parent (although it does apply to non-custodial parents) often present Ciyou & Dixon, P.C. attorneys. Relocation is sometimes a financial necessity for work. Most adults no longer have a job for life, and custody relocation is often necessary to maintain or advance employment opportunities.
Usually, there are other reasons associated with the desire to move, such as one parent has family in another state or a significant other. However, relocation is not a simple task in divorce and paternity matters, and these latter factors can obscure the case. There is the child and his/her best interests, and the other parent, who often opposes a relocation where the child is moved further away.
Relocating can be in a child’s best interests.
For the most part, litigants should focus on how a move may benefit the child and/or not materially impair the non-relocating parent’s relationship with the child(ren). That still presents a difficult balancing of the evidence by the trial court, and for the most part, the Court of Appeals gives great deference to the lower court’s decision.
When a relocation case is reversed on appeal, it provides an excellent learning tool for attorneys and potential relocating parents about the outer boundaries of the relocation and a trial court’s discretion. The Court of Appeals recently considered a case where it found the trial court had originally denied Mother relocation.1
In this case, the mother filed her intent to relocate to Tennessee from Indiana and a request to temporarily relocate. Mother relocated while the motion was pending, until the trial court ultimately denied her motion, whereupon mother returned the child to Indiana.
At the hearing on relocation, the father prevailed. Mother then appealed. The Court of Appeals found that the trial court had relied heavily on the fact that mother would be moving to the city of her boyfriend. However, the trial court overlooked that the mother also would be making over $30,000 per year more in a highly distinguished job, with less work hours.
The relocation statute notes there is a burden shifting between parties. The parent wanting to relocate has the burden of proof to show the relocation is made in good faith and for a legitimate reason. Mother made her showing. If this burden is satisfied, the non-moving parent has the burden to show the proposed relocation is not in the best interest of the child.2
Here, however, the trial court relied too heavily on the fact Father and child enjoyed a close relationship and that moving would disrupt that. However, the Court of Appeals found controlling and countered that this would be true in any relocation of distance, and would not allow most parents to relocate. Therefore, this argument is non-persuasive here to indicate it is not in the child’s best interests.
Further, and again, the Court of Appeals held that mother’s legitimate purpose for moving was a better paying and distinguished employment opportunity, the benefits of which the child would enjoy. While mother may have had a boyfriend there as well, it did not take away from the legitimate reason and good faith decision the Mother made to relocate.
Relocation is difficult on all parties involved in a divorce or paternity. Understanding that the relocating parent should have a legitimate reason and move in good faith, provides a safety net that one parent will not move away just to leave the other parent behind. The court will always look to the best interests of the child, and use this variable heavily in their determination.
If relocation is a potential to you or your co-parent, work to communicate each parties’ concerns and reasoning. This may allow an understanding of the move, and hopefully, a plan to keep parenting time with the other parent as frequent as possible. Perhaps even an agreement. If this fails, it is important to demonstrate at trial that a litigant’s (relocating) benefit in moving also benefits the child.
We hope this blog post gives you some insights into custody relocation and the required intent or reasoning necessary to make a strong showing, and how to set forth the reasons for relocation, where while personally beneficially, also is in the context of the child’s best interests. Ciyou & Dixon, P.C. advocates practice throughout the State of Indiana. This blog post was written by attorney Bryan L. Ciyou, esq. and Jessica Keyes.
- D.C. v. J.A.C; http://www.in.gov/judiciary/opinions/pdf/03301202jgb.pdf and ___ N.E.2d ___ (Ind.Ct.App. March 30, 2012) (2012 WL 1066097)
- Ind. Code § 31-17-2.2-5.