Jobs and relationships (significant others) are in a constant state of change in today’s digital world. However, in cases where two parents share custody or one has primary custody and the other parenting time from a divorce1 or paternity order, a relocation of any significant distance can create a potentially significant issue for parenting by the non-relocating parent. Where the custodial parent is the relocating parent, if challenged by the remaining parent, the relocating parent must prove the relocation is made in good faith and for a legitimate reason. This blog presupposes a relocating parent can meet this burden; and discusses keys ways the parent who will stay behind and wants to fight the relocation may demonstrate the normal rationale made for relocation with the children is not in their best interests. If successfully presented at trial, may cause a custody modification to the non-custodial (non-relocating) parent and parenting time for the former custodial parent.2
Sometimes a relocating parent’s stated reasons to relocate, such as for a different job, appear to be made in good faith, but either in cross-examining them or in your other evidence, a long-held desire to “just move” to be away from the other parent can be exposed. On its face, this is not a good faith reason for relocation. This may require doing significant trial prep in advance to present a successful challenge to relocation, such as depositions, private investigation, and other discovery. With these, for example, the evidence may reveal that this job “promotion” is nothing more than a lateral move within a company and the custodial parent could remain in the current position and the parenting time/visitation not change. Clearly, maximum contact by both parents with the children is optimal and in their best interests. Thus, by establishing this in the evidence, the non-relocating parent establishes the move is really a pretext to thwart the non-relocating parent’s parenting time with the children by the relocating spouse just to create time and distance and more parenting barriers.3 In this case, the trial court will likely deny the relocation, or allow it, modifying custody to the non-relocating parent.
Another common scenario for a proposed relocation is where the custodial parent4 meets a new love interest and wants to move to be closer to him or her; these cases often involve the custodial parent not being able to meet his burden to show the move is in good faith and for a legitimate reason. However, in certain cases, such as where step-siblings have spent significant time together with the parties’ children and are bonded with them and, additionally, the relocating custodial parent has provided most of the care, the court has a careful balancing to do in assessing the children’s best interests, if challenged,5 if the custodial parent is moving regardless if relocation is granted. This means weighing the overall diminution in the non-relocating parent’s parenting time and contact with the children and its impact is less than the harm of changing custody, wherein the court may allow the relocation in the children’s best interests. A relocation cannot be denied as mere punishment to the relocating parent if the children’s best interest is served. In these cases, there are also numerous legal tools available to the challenging parent to show the move is not in the children’s best interests. For example, the evidence will likely establish every doctor, dentist, specialist, friend and school will change and this tends to destabilize the children. So, is the move in their best interests? This type of evidence alone may be sufficient to show the move is not in the children’s best interests. In these cases, other than some of the other legal tools addressed in this blog, a relocation evaluation by a clinical forensic psychologist may be beneficial to show the relocation is not in the children’s best interest; this is the evidence necessary to provide a defense and hopefully under the burdens, have the court deny relocation with the children.
Perhaps the most difficult relocation scenario to fully identify and challenge in court is where the custodial parent has changed his or her life (normally for the better) and just wants to move on in another course in life and take the children with him or her. On close analysis, the facts normally reflect that nothing has really changed with the children and they are doing well in their current situation. Nevertheless, the custodial parent who files to relocate may present a facially good faith and legitimate reason to relocate. However, through depositions, discovery, and other investigation, it may evidence this parent is confusing his or her betterment of life with what is in the children’s best interests. Because he or she wants to move to X place and do X, it seems logical and may appear a great idea to him or her and on its fact to the court; therefore, the custodial parent perceives it is in the children’s best interests merely because he/she identifies the children as just an extension of his or her wishes. This view really is devoid of consideration of the non-custodial parent’s wishes and any meaningful connection with the children. This is a significant psychological concept but can be determined through many of the techniques available to you through counsel, several such tools identified in this blog. If identified, a custodial parent who proposes to relocate, likely cannot meet his or her burden, or with the non-relocating parent’s case, it is apparent the relocation is just about the custodial parent him-, herself disconnected from the best interests of the children. If distilled in the evidence presented, the non-relocating parent stands a high legal probability of having relocation denied unless there is a modification of custody to the non-relocating parent and parenting time afforded to the relocating parent, typically where distance is a factor.
The takeaway from this blog is there are numerous legal themes and tools available to litigants who wish to challenge relocation of their children so that they may maintain a steady relationship and time, even though it may result in custody modification to the non-relocating parent. The key is to select counsel immediately when the issue arises and develop a full defense to relocation. This blog post was written by attorneys at Ciyou & Dixon, P.C. who handle the full spectrum of domestic cases, including divorce, highly contested custody cases, and cases with interstate and international dimensions, to child custody and property division appeals. This blog is written for general information and is not intended as legal advice. It is not a solicitation. It is an advertisement.
- Relocation provisions are contained in the Divorce Act in Ind.Code section 31-17-2.2.1 et seq.
- A trial court cannot prevent a parent from relocating because he or she has a constitutionally guaranteed right to travel. However, a trial court may modify custody to the non-relocating parent if the custodial parent moves.
- Although beyond the scope of this blog, there is constitutional, fundamental right for parents to raise their children that may be invoked to challenge a relocation.
- A custodial parent has a theoretical right to challenge relocation as well but that is not often the case.
- A non-relocating parent does not have to challenge relocation but may negotiate terms to such and reach agreement.