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. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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