Anytime a parent, either the custodial, or noncustodial (or if the share joint physical custody) wants to move, the relocating parent must file a Notice of Intent to Relocate, and state the reasons why one is seeking to relocate1. The non-relocating parenting has the opportunity to object to the relocation within sixty (60) days.
As a general rule, parents, as adult individuals, may relocate and move wherever they wish, and a court cannot prevent them from doing so, as it would violate the constitutional right to travel. However, the question becomes, and especially when it is the primary physical custodial parent (or a joint physical custodial parent) is if the child(ren) shall also move. In divorce and paternity cases, the court maintains continuing jurisdiction over the minor child, including issues of custody, parenting time, and child support, until the child is nineteen (19) in Indiana.
When a custodial parent (either primary, or joint) proposes to relocation to a new home, that is sufficiently far away, custody and parenting time are properly squarely before the court to decide what is in the child’s best interests (to stay or to go), if the non-relocating parenting objects and requests a modification of custody or parenting time.
Typically if the parents end up in court to determine custody based on a relocating parent, the trial judge has the discretion to make the decision where the child(ren) should live, and whether custody should be modified. The considerations are 1) whether the relocation is in good faith and for a legitimate purpose and 2) what is in the children’s best interests?
There are many reasons relocation can be for a good faith and legitimate purpose, including work opportunities and to be closer to family, but those are not the only reasons. It is the relocating parent’s burden to prove his or her reasons are sound, and not for the purpose of frustrating contact with the other parent.
However, while a parent may propose relocation, and just because the relocation will create change and potentially more distance, there are times when it would not be good to object thereto and ask to modify custody. A recently decided case, Gilbert v. Gilbert2, exemplifies just such an occasion where objecting and requesting custody be modified based on a relocation was probably not the best course of action for the non-relocating parent to take. With all litigation, one must use reason and common sense.
In Gilbert, Mother was the primary physical custodian, and she proposed to move 30 miles away from her current home, causing the children to change schools, because the school system was better, it was closer to extended family members, and had housing to accommodate her growing family. Coincidentally, the location Mother chose was also the town Father works in, despite that he intended to continue living in the town Mother was currently living in. In Gilbert, the court decided that because Father’s parenting time would remain the same, and because he worked near where Mother wanted to move, he could continue to be involved in school and sports activities with the children, primary physical custody should remain with Mother, and not be modified.
The decision in Gilbert is directly related to the facts presented by the family dynamics, location, etc. However, as in Gilbert, one must consider how the change will affect the family (or not affect), rather than object to a change at all. Life is not stagnant, and changes often occur for good reason. In other cases, relocation may cause the loss of parenting time, or frustration to be involved in the child’s life in the same capacity, and each case should be considered individually.
We hope that you have found this information to be helpful in understanding some recent case developments related to child custody and relocation of a parent. This is not intended to be legal advice. If you have questions or concerns about your specific case, CIYOU & DIXON, P.C. can help evaluate your specific case. This blog post was written by Attorney, Lori B. Schmeltzer.
