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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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