Tuesday, June 11, 2013

Notice of Intent to relocate - Indiana Code 31-17-2.2 et seq

In Indiana a parent who has a child that is subject to a custody order or parenting time order must file a notice of intent to relocate before attempting to relocate the child to a new residence [31-17-2.2-1]. The notice requirement applies to any party who is subject to a custody or parenting time or grandparent visitation order involving an unemancipated child. The requirement applies regardless of distance involved in the relocation – even if it is across the hallway in an apartment complex.

“Relocation” is “a change in the primary residence of an individual for a period of at least sixty (60) days” [Swadner v. Swadner, 897 N.E.2d 966, 975 (Ind. Ct. App. 2008)].

The relocation notice requirements may seem burdensome but are easily manageable with proper planning. Each element of the requirement serves a legitimate purpose which may initially appear absurd in some cases but are significant in others. The subjective requirements are as follows [31-17-2.2-3(a)(2)];

The intended new residence, including the address of the relocating individual;
The home telephone number of the new residence, if one exist, and any other applicable telephone number for the relocating individual;
The date that the relocating individual intends to move;
A brief statement of the specific reasons for the proposed relocation of the child; and
A proposal for a revised schedule of parenting time or grandparent visitation with the child.

The notice shall be filed at least 90 days prior to the anticipated relocation date. [31-17-2.2-3(a)(1)(B)]. If the information cannot be obtained at least 90 days prior to the move then the notice can be filed without that information but it must be supplemented not later than ten (10) days after the date that the relocating individual obtains the information [31-17-2.2-3(b)].

If a party wishes to oppose the relocation of the child then he or she may file an objection not later than sixty (60) days after receipt of the notice from the relocating individual [31-17-2.2-5(a)]. Either party may request a full evidentiary hearing on the motion to prevent the relocation [31-17-2.2-5(b)]. The relocating individual has the burden of proof that the proposed relocation is made in good faith and for a legitimate reason [31-17-2.2-5(c)]. If the relocating individual meets the burden of proof that the proposed relocation is made in good faith and for a legitimate reason burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child [31-17-2.2-5(d)].

If a party opposing relocation has filed an objection the court may issue a temporary restraining order preventing the relocation of the child or the return of the child to the court's jurisdiction pending a final hearing [31-17-2.2-6(a)]. In considering whether to grant the restraining order the court shall consider if the notice requirement was not served in a timely manner and the parties have not presented an agreement concerning a parenting time schedule [31-17-2.2-6(a)(1)], that the child has been relocated without the appropriate notice or an agreement between the parties or a court order [31-17-2.2-6(a)(2)], or from an examination of the evidence presented at the temporary hearing, that there is a likelihood that, after a final hearing, the court will not approve the relocation of the child [31-17-2.2-6(a)(3)]. The court, however, may grant a temporary relocation pending a final hearing if notice requirements have been met and after it reviews the evidence presented at the temporary hearing determines that there is a likelihood that it will approve the relocation of the child following the final hearing [31-17-2.2-6(b)(3)].

Any party may file a motion for the court to set the matter for a hearing to review and modify, if appropriate, a custody order, parenting time order, grandparent visitation order, or child support order [31-17-2.2-1(b)]. In considering whether to modify its existing orders the court shall consider the distance involved in the proposed change of residence, the hardship and expense involved for the nonrelocating individual to exercise parenting time or grandparent visitation, the feasibility of preserving the relationship between the nonrelocating individual and the child through suitable parenting time and grandparent visitation arrangements (including consideration of the financial circumstances of the parties), whether there is any relevant established pattern of conduct by the relocating individual which includes whether that individual has either promoted or thwarted a nonrelocating individual's contact with the child, the reasons provided by the relocating individual for seeking relocation and the nonrelocating parent for opposing the relocation of the child, and any other factors affecting the best interest of the child [31-17-2.2-1(b)].

In addition to those factors the court must also consider the eight factors found under I.C. 31-17-2-8 which govern child custody orders generally. While the relocation statute is a self-contained chapter and does not by its terms refer to the general change of custody provisions those must still be considered. The relocation chapter introduces some new factors that are required to be balanced, but also expressly requires consideration of “other . . . factors affecting the best interest of the child” [31-17-2.2-1(b)(6)]. The general custody determination required under 31-17-2-8 is to find “the best interests of the child” by examining the factors listed in that section. Thus, the relocation statute incorporates all of the eight factors and adds some new ones. However, there does not necessarily need to be a substantial change in one of the original 8 factors because consideration of the new factors might at least theoretically change this balance of factors [Baxendale v. Raich, 878 N.E.2d 1252, 1256 (Ind. 2008)].

The statutory framework of the relocation law is for application to child custody matters when one parent is a “relocating individual”. It is not a means by which to test waters to see what affect it would have on the custody and parenting time of the child. It is an abuse of the system to file a notice of intent to relocate without having made the substantial steps towards relocating. This is expressed in the notice requirements which include the address, telephone number, the date, and specific reasons for the relocation. A parent engaging in filing a frivolous motion to relocate may be ordered to pay attorney fees of the affected parties [31-17-2.2-1(c)].

Regardless of a custody determination or if the parent actually intends to relocate the relocating individual does still retain the right whether to relocate which a court cannot prevent. The Supreme Court of the United States has held that all citizens have a right to interstate travel “uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement,” Shapiro v. Thompson, 394 U.S. 618, 629, 631, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), overruled in part on other grounds by Edelman v. Jordan, 415 15 U.S. 651, 671, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and laws that chill that right with no other purpose are “patently unconstitutional.” Id. (quoting United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)). The contravening interest in the right of a parent to relocate and the right of the other parent to maintain a relationship with the child are balance using the best interest standard. Thus, a parent is free to relocate but may not be able to relocate the child.

Recently I obtained an injunction preventing a parent from relocating with the children by alleging that parent was a risk to abscond with the children and the relocation was not in the children's best interest. Opposing counsel expressed his intent to withdraw the notice of intent to relocate but that has yet to happen. During my family evaluation of the non-relocating parent the children expressed no knowledge of the proposed relocation scheduled to occur three days later.

This parent has played games for years and always seeks to harm the children. Once it was realized that I would soundly prevent the relocation of the child no further attempt has been made. This parent and the attorney apparently didn't realize that the decision “ultimately turn[s] on the best interests of the child” which is, after all, the “overarching policy goal of all family court matters involving children” [Lambert v. Lambert, 861 N.E.2d 1176, 1180 (Ind. 2007)].

In summary, when a parent intends to establish a new residence for at least 60 days, notice must be provided to the other parties. The court may temporarily allow or prevent the relocation based upon the likelihood of a similar ruling following a full evidentiary hearing. In addition to the eight factors that govern initial custody determinations the relocation statute also has additional factors. There does not, however, need to be a substantial change in one of the eight factors when a relocation has been proposed. Ultimately, the court is required to determine whether the relocation is in the child's best interest.

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