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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. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

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  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

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