ILNews

Courts may modify custody upon relocation

Jennifer Nelson
January 1, 2008
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Trial courts are not required to order a change in custody upon a parental relocation under a 2006 Indiana statute, the Indiana Supreme Court decided today. The high court ruled trial courts are allowed to modify custody arrangements at their own discretion.

In Valerie Raich Baxendale v. Samuel Raich, III, No. 64S05-0709-CV-372, the Indiana Supreme Court reversed the Indiana Court of Appeals decision, finding the trial court's balancing of relevant considerations in granting physical custody of A.R. to Raich was not erroneous.

Baxendale and Raich, both of Valparaiso, had joint legal custody of A.R., with Baxendale retaining physical custody. Baxendale accepted a new job in Minneapolis and filed a notice of intent to relocate with A.R., who was 11 at the time; Raich responded with a petition for modification of custody. The trial court conducted a hearing in August 2006 and entered an order Sept. 1, 2006, denying Baxendale's request to relocate A.R. The trial court also ordered continued joint legal custody of the child and provided that Raich would be the physical custodial parent if Baxendale lived in Minnesota, but upon her return to Indiana, she would become the custodial parent.

Baxendale appealed, stating the trial court abused its discretion by modifying physical custody and by excluding unspecified evidence claimed to bear on Raich's use of drugs and alcohol, and the order violated her federal constitutional right to travel. The Court of Appeals reversed the trial court regarding the modification of physical custody.

Justice Theodore Boehm wrote in today's opinion that the interplay of the 1985 section of Indiana statute dealing with relocation and a 2006 addition addressing relocation that replaced it provided an issue of first impression.

The 1985 provision was the first to specifically address relocation-based modifications. If a custodial parent intended to move either outside of Indiana or 100 miles away from his or her current residence, the custodial parent had to provide notice and either party could request the court to review and modify the custody order, "if appropriate," wrote Justice Boehm. The trial court was required to consider the hardship and expense for the non-custodial parent in regards to parenting time. In Lamb v. Wenning, 600 N.E.2d 96, 99 (Ind. 1992), the Court of Appeals ruled a custodial parent's relocation alone doesn't support a modification of custody, but the effect of the move on the child may support a modification.

The new chapter added in 2006 to the "Custody and Visitation Rights" of Indiana Code changed relocation to mean for at least a period of 60 days and no longer requires a move of 100 miles or out of state. Also, upon motion of either parent, the court must hold a hearing to review and modify custody, again, "if appropriate," wrote Justice Boehm. To decide when it is appropriate, the court has to consider factors specific to relocation.

The Supreme Court ruled that the 2006 update incorporates all Indiana Code requirements in 31-17-2-8, which states a custody order must be in accordance with the best interests of the child, does not require a change in one of the factors under this statute to allow a custody change after a relocation. The 2006 update appears to authorize the court to entertain a custody modification "in the event of a significant proposed relocation without regard to any change in the Section 8 factors," wrote Justice Boehm. Depending on the age of the child, and other factors, a move may or may not warrant a change of custody.

In this case, the majority of justices found modification is permissible because of major changes in A.R.'s interaction with his father, grandmother, and brother, and his adjustment to a new school and other activities. Justice Frank Sullivan dissented on this issue, believing the Court of Appeals ruling was correct.

The high court also addressed Baxendale's appeal that the trial court order violated her federal constitutional right to travel by forcing her to choose between staying in Indiana and retaining physical custody or relocating to Minnesota. Shapiro v. Thompson, 415 U.S. 651, 671, (1974), held that all citizens have the right to interstate travel, but no case has addressed the interaction between a parent's right to travel and a custody order. Justice Boehm wrote the Indiana Supreme Court agrees with courts that take Shapiro as recognizing that a chilling effect on travel can violate the Constitution but also that other considerations may outweigh a person's interest in travel. Baxendale retains significant involvement with A.R. in the new custody agreement, and A.R.'s interest in continuity of education and being in contact with other family members justified the trial court's custody order.
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  1. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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