In 2006, the General Assembly enacted a new statute addressing relocation of parents in the child custody provisions of the Divorce and Paternity Act. The relocation provisions required certain notice to be given to a non-relocating parent who may object. This was interpreted by the Indiana Supreme Court in 2008 in the Baxendale case.1 In general, Baxendale, directed a trial court may consider relocation as a part of the best interests factors and modify custody to the non-relocating parent. Since this statute and the Baxendale case decision, three key mistakes or concerns every parent in a relocation case should be aware ...
June 23, 2016Adam Hayes
Many divorce lawyers receive requests for guidance from their clients on “changing venue.” In Indiana, this is not common and is generally associated with moving the case from one county to another. This occurs in rare occasions in criminal cases in order to ensure an impartial jury. In a limited number of cases, first, the case may be filed in the wrong county by mistake or the parties move from the county during the divorce. Where these facts exist, it may be possible to move the case to a different county under the trial rules and/or agreement of the parties. Second, ...
December 9, 2015Adam Hayes
Our society is more mobile than ever, working from home to teleconferencing across the globe. This makes relocation by a custodial parent more likely now than at any time in the past. There are three keys that a custodial parents must establish in order to be allowed to relocate with the children. First, and perhaps most important, is that the relocation is made in good faith and for a legitimate reason. A job transfer, layoff, and work-related reasons are the most common and likely to be successful. What this means is the relocation’s central reason must be for the benefit and ...
December 2, 2015Adam Hayes
In paternity and divorce cases, parties sometimes do not fully understand “legal custody.” Legal custody has nothing to do with who a child stays with for parenting time or custody. Instead, it is which parent(s) has the authority to make decisions about the child’s health, education, and religions decisions.1 If it is in a child’s best interests, the court may award joint legal custody. This is generally appropriate and in the child’s best interests when the parents have a generally shared view of these matters, such as they are of the same faith, believe in public or private schools, or have ...
October 7, 2015Adam Hayes
In 2006, the General Assembly adopted a comprehensive set of statutes to be followed in the event either party in a divorce or post-divorce proceeding moved. This requires either parent (custodial or the one who has parenting time) to notify the other they are moving and allows objection to the move. The obvious focus is to allow a court to determine how this impacts the children’s best interests. This new statutory scheme ultimately raised a number of legal questions that were addressed by Indiana’s courts. The first is whether and how a relocation by a parent impacts child custody modification. The ...
September 23, 2015Adam Hayes
Supposing a custodial parent is permitted by a court to relocate with the child to another state, there are often matters that arise after relocation that must be decided by a court with regard to the child. This brings up a relatively frequent question of which court decides, the court in the child’s former state of residence, generally the “home state,” or the state where the child now resides. Generally, the court in the child’s former “home state” retains jurisdiction so long as the non-relocating parent resides there. However, a petition may be filed in the new state asking it to ...
June 16, 2015Adam Hayes
Where the is a dispute about a child, from its biological parent to impermissible removal of a child from his or her home to return, there are numerous statutory laws that apply to ensure the child’s best interests are met and/or the proper court hears the matter. This blog is written to summarize those for you to better understand questions you might want to ask your counsel. The Divorce Act. One of the most commonly applicable bodies of law is found under the Indiana Divorce Act statutes. This statute directs that a trial court make a child’s best interest in determining ...
June 2, 2015Adam Hayes
Under the United States Constitution, each person has the right to free travel in and between the states. Where the parties have a child in common and custody is in place (whether by paternity or divorce), this right to still applies. However, under the Paternity and Dissolution Acts, the relocating party must do two things: First, the moving party must provide advance written notice of the intent to relocate 90 days in advance or as soon as possible if the time is shorter. This applies to the custodial and non-custodial parent. Second, the relocation must be made in good faith and for ...
April 22, 2015Adam Hayes
Custody of a child is a very important and sometime contentious matter in family law matters, such as dissolution and paternity cases. When both parties live in close proximity to each other and the custodial parent wishes to move a good distance away, which will impact the non-relocating parent’s parenting time, the matter frequently becomes contested. In a recent decision from the Court of Appeals, that affirmed the trial court’s order, the trial court allowed a parent to move within a 100 miles of the custodial parent’s home town. The Court opined that this would still allow the non-custodial parent to ...
April 15, 2015Adam Hayes
In the 1960s, it was common for a parent and child(ren) to take a “vacation” to another state, file divorce, and have this new state decide custody matters. Ultimately, this gained enough attention that the laws changed, as this new state would not have the necessary evidence to decide custody fully in a child’s best interests, and as a policy matter, “rewarded” a parent who fled to avoid a court best positioned to decide divorce, custody, and property matters. For this reason, more or less uniform child custody jurisdiction laws1 were passed in the states, including Indiana.2 This is helpful when ...
March 3, 2015CD