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Relocation of a Parent

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What is relocation?
Who are the potential parties?
How are the parties defined?
What is the duty of an individual, who has or seeks custody or parenting time, who intends to relocate his/her primary residence?
What information must the Notice provide?
How must notice be sent to non-relocating individuals?
When must notice be sent to non-relocating individuals?
What options are available under the statute to non-custodial, "non-relocating" parents?
What options are available under the statute to other non-custodial "non-relocating" individuals with or seeking parenting time, such as grandparents?
Who has the burden of going forward and what must he/she prove under the motion to enjoin relocation?
What factors may the Court consider to determine whether it is in the best interest of the child to temporarily or permanently relocate; to modify custody; to modify parenting time; to modify child support?
What are the new "relocation factors"?
Has the statute changed the prior standard permitting the award of attorney's fees only in cases of extreme hardship?
What are "good faith" and "a legitimate reason"?
What law is applicable where notice is before July 1, 2006, and hearing or trial after?

I. TIMELINE OF CHANGES TO INDIANA'S APPROACH IN RELOCATION CASES

• Darnell v. Mullikin, 8 Ind. 152 (1856)
  Relocation without formal notice or prior court approval. Burden on non-relocating parent.
  ↓

• Marshall v. Reeves, 311 N. E. 2d 807 (Ind. 1974)
  Relocation of child without prior court approval thwarts court's continuing jurisdiction and non-relocating parent's visitation rights. Burden on relocating parent to obtain court approval.
  ↓

• Ind. Code 31-17-2-4 (Formerly, Ind. Code 31-1-11.5-20, P.L. 278-1985, Sec. 2).
  Party seeking custody in dissolution, legal separation or child support action must give notice of intent to relocate in initial proceedings. Burden on party seeking custody who wishes to relocate in initial custody action.
  ↓

• Ind. Code 31-17-2-23 (Formerly, Ind. Code 31-1-11.5-21.1, P.L. 278-1985, Sec. 3).Party having custody must give notice of intent to move. Burden on non-relocating parent to seek modification and show substantial change of factors, other than relocation per se, require custody modification in the child's best interest.

• Ind. Code 31-17-2.2 (repealing 31-17-2-4 & 31-17-2-23) (Effective July 1, 2006)

II. QUESTION - ANSWER ANALYSIS OF RELOCATION STATUTE

1. What is "relocation"?

• The change of the primary residence of an individual for at least 60 days.
  (Ind. Code 31-9-2-107.7).

2. Who are the potential parties?

• Non-relocating individuals
• Non-relocating parents
• Relocating individuals.

3. How are the parties defined?

• A "non-relocating individual" is any person who has custody, parenting time with or grandparent visitation with a child (or who has filed a legal action seeking custody, parenting time or grandparent visitation with a child).
  (Ind. Code 31-9-2-84.6)

• A "non-relocating parent" is a parent who has custody or parenting time with a child and who does not intend to move his/her principal residence.

• A "relocating individual" is a person who has custody or parenting time with a child, (or is seeking custody of parenting time), and intends to move his/her principal residence. (Excluded from this term are grandparents with visitation rights.)
  (Ind. Code 31-9-2-107-5).

4. What is the duty of an individual, who has or seeks custody or parenting time, who intends to relocate his/her primary residence?

• To give appropriate Notice, within the prescribed period prior to his or her relocation to all non-relocating individuals.

• To file the Notice with the clerk of the court that issued the custody or parenting order or if that is not applicable, with the clerk of the court having jurisdiction over custody or parenting time with the child.
  (Ind. Code 31-17-2.2-1)

5. What information must the Notice provide?

• Address and mailing address of the relocating individual's new residence.

• Home and other telephone numbers for the relocating individual.

• The date the relocating individual intends to move

• A brief statement of the specific reasons for the proposed relocation of the child

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

• A statement that a parent must file an objection to the relocation of the child with the court not later than 60 days after receipt of the notice.

• A statement that a non-relocating individual may file a petition to modify custody, parenting time, grandparent visitation or child support orders.
  (Ind. Code 31-17-2.2-3(a)(2)(A)-(H))

6. How must notice be sent to non-relocating individuals?

• By registered or certified mail.
  (Ind. Code 31-17-2.2-3(a)(1)(A))

7. When must notice be sent to non-relocating individuals?

• No later than 90 days before the date that the relocating individual intends to move.
  (Ind. Code 31-17-2.2-3(a)(1)(B))

• Where the information cannot be provided at least 90 days before the relocating individual intends to move, the relocating individual must provide the information not later than 10 days after the date the relocating individual obtains the information required to be provided. Regardless of the foregoing, the relocating individual must provide all of the information required no later than 30 days before the relocating individual intends to move the new residence.
  
  Query: Does this mean no notice until all information is obtained and, then, at least 30 days' notice prior to move? Or, notice (with incomplete information) upon learning with a supplemental notice?
  (Ind. Code 31-17-2.2-3(b))

8. What options are available under the statute to non-custodial, "non-relocating parents"?

• Motion objecting to child's relocation, filed within 60 days of his/her receipt of Notice:

  • Seeking temporary order preventing relocation of child.
    
    
  • Seeking permanent order preventing relocation of child.
    (Ind. Code 31-17-2.2-5(a))
    
    
  • Motions to modify custody, parenting time, grandparent visitation or child support orders.
    (Ind. Code 31-17-2.2(1)(b))

9. What options are available under the statute to other non-custodial "non-relocating individuals" with or seeking parenting time, such as grandparents?

• Motion to modify custody, parenting time, grandparent visitation or child support order.
  (Ind. Code 31-17-2-1(b)

10. Who has the burden of going forward and what must he/she prove under the motion to enjoin relocation?

• If the non-relocating parent fails to file a motion to temporarily or permanently enjoin the child's relocation, within 60 days after his/her receipt of the Notice, the relocating custodian may relocate. Query: what if 90 days has not expired between the service of the Notice but more than 60 days has transpired since receipt of the Notice? May the relocating custodian move? The statute doesn't say. Why risk jeopardizing relocation when the relocating custodian should have been contemplating not making the move prior to the expiration of 90 days. Query: Can the non-relocating parent file a motion to temporarily or permanently enjoin relocation after the 60 days and before actual relocation? The statute doesn't say. However, Ind. Code 31-17-2.2-6(a)(1) and (2) permit the injunction or an order for the return of the child where Notice was not served in a timely manner and the parties have not presented an agreement concerning parenting time, or where the child has been relocated without appropriate Notice, agreement between the parties or court order. It would seem that a motion for leave to file after 60 days, if the Notice was appropriate, may be available if evidence could be presented that there is a likelihood, after final hearing, the court will not approve the relocation of the child. It would seem that failure to move to enjoin the relocation more than 60 days after the receipt of Notice of relocation would obviate the obligation of the relocating custodian to show that the proposed relocation is made in good faith and for a legitimate reason, which is required where the motion to enjoin the relocation is made within 60 days of the Notice.
  (See, generally, Ind. Code 31-17-2.2-5.)

• Timely motion to temporarily or permanently enjoin relocation of child shifts the burden to the relocating custodian to prove the proposed relocation is made in good faith and for a legitimate reason. (Ind. Code 31-17-2.2-5(c))

• "On the request of either party, the Court shall hold a full evidentiary hearing to grant or deny a relocation motion under subsection (a)." I.e. under the subsection permitting the motion seeking temporary or permanent injunction.

(Ind. Code 31-17-2.2-5(b))

• If the relocating custodian meets the burden of proof to show relocation is made in good faith and for a legitimate reason, the burden shifts to the non-relocating parent:

• • To show that the proposed relocation is not in the best interest of the child.
    (Ind. Code 31-17-2.2-5(d))
    
    -OR-

  • To show that the Notice was not served in a timely manner and that a parenting time agreement has not been "presented"; or, that the child has been relocated without appropriate Notice, or an agreement between the parties or an order of the court; or, that there is a likelihood that, after final hearing, the court will not approve the relocation of the child. (Ind. Code 31-17-2.2-6(a)(1), (2) or (3))

• The Court may grant a temporary order permitting relocation pending a final hearing if the Court finds that timely and appropriate Notice was given; it issues an order for a revised schedule for temporary parenting time; and, finds there is a likelihood that, after final hearing, the Court will approve the relocation of the child.

11. What factors may the Court consider to determine whether it is in the best interest of the child to temporarily or permanently relocate; to modify custody; to modify parenting time; to modify child support?

• The court should consider all factors affecting the best interest of the child which, necessarily, would include Ind. Code 31-17-2-8 or 31-14-3-2, (factors for custody determination); Ind. Code 31-16-6-1, (relevant factors to be considered by court ordering child support); and the new "relocation factors."
  (Ind. Code 31-17-2.2-1(b)(6))

12. What are the new "relocation factors"?

• Distance involved in the proposed change of residence.

• The hardship and expense involved for the non-relocating individual to exercise parenting time or grandparent visitation.

• The feasibility of preserving the relationship between the non-relocating individual and the child through suitable parenting time and grandparent visitation arrangements including consideration of the financial circumstances of the parties.

• Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a non-relocating individual's contact with the child.

• The reasons provided by the relocating individual for seeking relocation.

• The reasons provided by the non-relocating parent for opposing relocation.

13. Has the statute changed the prior standard permitting the award of attorney's fees only in cases of extreme hardship?

• Yes. Court may now order either party to pay a reasonable amount for the cost to the other party of maintaining or defending the preceding for either or both attorney's fees and mediation fees, including amounts for legal services provided and costs incurred before the commencement of the proceedings or after entry of judgment.
  (Ind. Code 31-17-2.2-1(c), applying Ind. Code 31-15-10 to relocation actions)

14. What are "good faith" and "a legitimate reason"?

• Not defined by statute or, obviously, case authority, yet.

• "Good Faith" has been defined as a state of mind consisting in honesty in belief or purpose; faithfulness to one's duty or obligation; observance of reasonable commercial standards of fair dealing in a given trade or business; or, absence of intent to defraud or to seek unconscionable advantage. Handbook of Family Law Terms, Brian A. Garner, Editor (2001)

• For "a legitimate reason," see Sec. III, Analysis of Relocation Factors.

15. What law is applicable where notice before July 1, 2006 and hearing or trial after?

• Other commentators regarding the overhaul of the relocation statutes have stated that, the general consensus among practitioners and judges is that the new relocation statute will govern all cases where the required notice is filed July 1, 2006 and after. Thus, the prior statute will govern cases where the notice is filed before July 1, 2006. See, Alan Circuit Court, Magistrate Craig Bobay's article in Family Matters published by Indiana State Bar Association (March, 2006). This commentator acknowledges "…that retroactive application of a statute is the exception rather than the rule, and that statutes ordinarily are applied prospectively absent strong and compelling reason." Estate of Edwards, 562 N.E. 2d 763, 767 (Ind. Ct. App. 1990). (citing Gosnell v. Indiana Softwater Service, 503 N.E. 2d 879, 880 (Ind. 1987)). However, the Edwards court noted that a construction should be adopted which sustains a statute and carries out its purpose and renders all of its part harmonious. Id. (citing Irmscher v. McCue, 504 N.E. 2d, 1034, 1036 (Ind. Ct. App. 1987)). It certainly would be unfair, if not a deprivation of due process, to apply the notice and burden of proof requirements of the new statute to notices filed prior to July 1, 2006. However, there should be no problem applying the additional factors found at Ind. Code 31-17-2.2-1(b)(1)-(5) in a custody modification preceding secondary to parental relocation tried after July 1, 2006, even if the notice was prior to July 1, 2006, because custody modifications require a substantial change in "…one (1) or more of the factors the court may consider under [Ind. Code 31-17-2-8]." Ind. Code 31-17-2-21. Section 8 specifically mandates that, "[t]he court shall consider all relevant factors including… [(1)-(8).]: Ind. Code 31-17-2-8. The factors involving distance, hardship, the feasibility of preserving relationships, established patterns of promoting or thwarting relationships have always existed, and go to motivation. See, generally, Ruppert, M., The Impact of Relocation on Custody Litigation: A Look at the Law, Case Evaluation, Negotiation and Trial (ICLEF 1989). While in a trial after July 1, 2006, regarding a notice filed before July 1, 2006, the relocating custodial parent should not have to carry the initial burden to show that his/her relocation is in good faith and for a legitimate reason, evidence showing bad faith and reasons naturally shifts the burden during trial. In short, motivation for moving or opposing the move and patterns of promoting or thwarting relationships have been factors the court could always have looked at. They are now just more prominent by virtue of the amended statute.

III. ANALYSIS OF RELOCATION FACTORS

"Relocation cases" applies primarily to situations where a custodial parent (although it could be a non-biological custodian), usually having either "sole" or "primary physical" custody, desires to relocate the children to a residence substantially removed from the marital domicile. Indiana's new custody relocation statute, Ind. Code 31-17-2.2, et. seq., applies to both the relocating and non-relocating parent and regardless of the distance of the relocation. The following analysis applies to relocating custodian.

Obviously, the greater the distance involved in the planned relocation, the more significant the threat to the continuity, quality and pattern of interaction between the children and the parent left behind. Indiana's relocation statute has finally officially recognized what trial courts and practitioners have always known in these highly emotional cases: the legitimacy of the reason for relocating and the motives for relocating and opposing the relocating are crucial.

Thus, whether representing the non-relocating or relocating party, the attorney's attention must focus early on three factual issues which the evidence must clarify: (i) the motivation for moving and the opposition to it; (ii) the impact of relocation or modification of custody upon the relationship between the child and each parent; and, (iii) the affect on the children caused by the need to adjust to a new environment or a new custodial parent.

A. MOTIVATION

The parties' motivation or reasons for relocating or opposing relocation will shed a great deal of light on the other two issues as they relate to the parties and their children. A weak or bad reason for moving could prove fatal to the custodial parent's desire to relocate with continued custody, where the non-custodial parent enjoys a strong, nurturing relationship with the child and can provide a comparable living environment. This is especially true where the "home court advantage" is supplemented by the significant presence of extended family and community involvement by the children. Two cases which underline this principle are Burrington v. Howard, 521 N.E. 2d 371 (Ind. Ct. App. 1988); and, Lubeznik v. Liddy, 477 N.E. 2d 947 (Ind. Ct. App. 1985). In Burrington, Mother and Father shared joint custody of the parties' daughter. This arrangement worked very well until the Mother informed the Father that she and her new husband planned to move to Georgia with the parties' daughter because of his new job. The evidence indicated that the new job could result in an additional move and that the Mother and her husband appeared to be motivated by a concern for their own interest over that of the child's.

While the court recognized that both parents shared a positive role in Stacey's life, the court was presented evidence that suggested Regina and Larry Burrington tended to put their own interest above Stacey's, as evidence by their marrying in Las Vegas without informing Stacey first. In contrast, Michael and Jane included Stacey in their marriage ceremony. It was also Mr. Burrington's testimony that he and Regina had decided to move to Georgia with very little consideration of the effect of the move on Stacey….Finally, the court heard evidence that before proposing the move to Georgia, Michael's visitation with Stacey was substantial, whereas after the move was announced, Regina had limited his time with Stacey.

Barrington v. Howard, 524 N.E. 2d at 373. The result: Custody to Father.

In contrast to Burrington is Lubeznik v. Liddy. In Lubeznik, the parties shared actual physical custody of the children equally. Both parties were equally concerned with the children's education, religious upbringing and the relationship of the children to each other. The mother petitioned the court to relocate to New Mexico for compelling reasons. She and her husband did their homework to ensure the court that the relationship between the children and their father would not be substantially harmed by the move and that appropriate arrangements had been planned by them to ease the children's adjustment to their new environment.

Lynn and her husband, Dennis, decided to move to Santa Fe primarily for economic reasons. They have both held executive positions in a bank which was in the process of being sold. Lynn and her husband were terminated from their positions by the new management. Because of their continued status as substantial shareholders of the bank, Lynn and Dennis would be foreclosed from seeking employment in other area banks due to a conflict of interest. Moreover, Dennis desired to seek career opportunities in a commercial real estate field-a field of allegedly limited potential in the Northern Indiana area…There was evidence of probative value from which the trial court could have found that Lynn and Dennis were making a carefully considered move for financial and other reasons. Moreover, the court could have found that the children's welfare had been considered and would not suffer by allowing the move…[Lynn and Dennis] had explored educational and religious opportunities for the girls in Santa Fe and agreed to continue to consult with [the father] regarding these matters.

Lubeznik v. Liddy, 477 N.E. 2d 947. Result? Mother retained custody and moved.

When representing the custodial or non-custodial parent, counsel must determine whether the relocating parent has stated good reasons for the move and whether the remaining parent is motivated to oppose the move based upon the child's best interests. Are the problems that brought about the divorce still being fought? Is there a desire to avoid contact with the other parent? Are there, or have there been, conflicts regarding parenting time, a new spouse, philosophies in child rearing or child support?

B. EFFECT OF RELOCATION OR CHANGE OF CUSTODY ON THE CONTINUING RELATIONSHIPS BETWEEN THE CHILDREN AND THE PARENTS.

This issue is actually the most important and most difficult to prove. It relates to showing the probable effect on the child and on the relationship between the child and the parents whether relocation is permitted or custody is modified.

Is the relationship between the non-custodial parent and the child substantial? Is it multi-dimensional or is it a "Disney Land-Dad"? Does one parent provide more emotional stability than the other? Do the ages or sexes of the children cause them to more closely identify with one parent as opposed to the other? Is the child outgoing or introverted? Is the child burdened with the guilt of being a parent to one of the parents? What are the client's plans for maintaining the child's relationship to the other parent when change occurs?

Is the relocating parent running from a familiar environment in which he or she is not coping optimally? If so, does the non-custodial parent provide a significant stabilizing influence such that the child would be harmed by the stresses caused by a move without the ready touchtone provided by the non-custodial parent? The same concern exists even if the custodial parent has an excellent reason for relocating but a relatively low threshold for dealing with the stresses caused by child-rearing, adjusting to a new job and a new environment. For example, if Mr. and Mrs. Liddy had been less on top of determining and minimizing the effects of their move to Santa Fe, New Mexico, on the children, would Mr. Lubeznik's chances of gaining custody from Mrs. Liddy have improved? Most likely.

C. THE CHILD'S ADJUSTMENT TO THE NEW CUSTODIAL ENVIRONMENT.

Whether removal and continuing custody is permitted or a modification is granted, this issue cannot be ignored. Obviously, the client must have a plan for the child's adjustment to the new domicile or familiar surrounding with the non-custodial parent. Again, Lubeznik is an excellent example of how the relocating parent nailed down this issue to her favor.

With respect to the primary issues involved, it can be said that Mrs. Liddy went 3-0 against an evenly matched adversary---Mr. Lubeznik. Her motivation for removal was excellent; she affirmatively sought to protect the children's relationship with their father who was left behind; and, she knew what cultural, educational, social and religious opportunities were important to both parents and knew where to find them in Santa Fe.

The following questions are suggested to assist the attorney in his/her analysis of the child's adjustment in the new custodial environment:

• Are there any social, economic, professional, psychological or other significant advantages to the custodian and/or the child likely to result from relocation? If so, what?

• Would prohibiting relocation better provide social, economic, professional, psychological or other significant advantages for the custodial parent and/or the child? If so, what?

• Are any advantages for the child stemming from relocation offset by decreased influence of the left behind parent? If so, what?

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