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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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