One of the most common family law issues we encounter, particularly because our practice involves representing custodians in multiple counties and states, involves relocating with minor children.
Sometimes only short geographical distances are involved, such as a parent moving across town in metro Louisville, or from Louisville to Oldham County or southern Indiana. Other cases involve parents wanting to move hundreds or thousands of miles for a variety of reasons, including work or to be closer to family members after a divorce or separation.
The rules that govern what relocating parents must do at the courthouse and with the other parent (or other person exercising custody or parenting time, such as a grandparent) vary depending on where you currently live.
INDIANA RULES ON RELOCATION
Indiana has had a law on the books for some time regarding parties who share children and desire to change residences. (Click here to read the complete Indiana Code statute, I.C. 31-17-2.2)
The law requires a notice to be filed with the court and served on the other parent by registered or certified mail ninety (90) days or more before the move.
The notice needs to include specific and detailed information, including:
- Physical address of the new residence (there may be exceptions for situations that involve domestic violence or protective orders);
- New phone numbers, if any;
- Date of the proposed move;
- Reason for the move;
- Proposed new parenting time schedule;
- Statements advising the non-relocating parent about certain rights that he or she has.
One of the defining features of Indiana’s rule is that this protocol must be followed for all proposed moves when a change of the individual’s primary residence will occur for at least a sixty (60) day period – regardless of which parent has custody (or whether joint custody is shared) and regardless of whether a parent is moving across the street or moving to a new state or country.
One of the common questions asked is whether a notice has to be filed if the parties are not presently involved in an ongoing court case regarding their child or perhaps have no existing orders regarding custody, parenting time, child support, and the like.
Imagine a scenario where a husband and wife are having marital problems, but before either parent files for divorce, one parent wants to relocate with the children. Or if a child is born out of wedlock, and the parents have never been to court to set up parenting time, and either the mother or father desires to move with the child.
The Indiana relocation law requires all individuals who have (or who are seeking) child custody or parenting time, and who intend to relocate their residence, provide the notice above to an individual who has (or is seeking) child custody, parenting time or grandparent visitation. The first provision of the statute specifically states that if the section of the law discussing a prior custody or parenting time order being issued does not apply, then the notice should be filed with the court clerk that has jurisdiction over the legal proceedings concerning custody or parenting time of the child. The law also speaks to allowing a court to consider relocation at the initial custody hearing.
The non-relocating parent must file an objection, if any, within sixty (60) days of receiving the notice to relocate. It is possible for the court to enter a temporary restraining order prohibiting relocation while the matter is pending.
Either party can ask the Court for a hearing to review and modify any present orders, and the Court should take into account the following factors:
- The distance involved in the proposed change of residence;
- The hardship and expense involved for the non-relocating individual to exercise parenting time or grandparent visitation;
- The feasibility of preserving the relationship between the non-relocating individual and the child through suitable parenting time and grandparent visitation arrangements, including consideration of the financial circumstances of the parties;
- Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a non-relocating individual’s contact with the child;
- The reasons provided by each parent for seeking or opposing the relocation of the child;
- Other factors affecting the best interest of the child.
After the notice requirements are met, it is possible that relocating with your child in Indiana may be a more straightforward task than in some other jurisdictions. In Kentucky and other states, the burden may be on the relocating party to show that the move is in the child’s best interests, which can be difficult if the child is engrained in the local school and/or community with friends and family.
Indiana, however, does not put all of the burden on the relocating parent. That person must initially show that the proposed move is made in good faith and for a legitimate reason. If those are requirements are met, then the burden “shifts” to the non-relocating parent to show that the proposed move is not in the best interest of the child. Failure to file a motion objecting to the move can also be fatal to an individual’s hopes of keeping the child in his or her present location.
KENTUCKY RULES ON RELOCATION
In the past few years, Kentucky for the first time implemented statewide rules of practice for Family Court.
The rule regarding relocation has already gone through some changes. Initially, the rule looked at whether a parent was moving more than 100 miles away or to another state.
The current rule, which was modified in late 2012, asks whether the relocating parent has joint or sole custody in determining the necessary steps to a successful move.
A sole custodian who desires to move must file written notice with the court and serve the notice on the non-custodial parent prior to the move. Within twenty (20) days of being served with the notice, the non-custodial parent may file a motion contesting any change in court-ordered visitation caused by the move.
A joint custodian who desires to move also must file written notice with the Court and serve the notice on the non-relocating parent who shares joint legal custody. Additional language in this rule, however, demonstrates that a joint custody arrangement involves additional steps:
Either party may file a motion for change of custody or time-sharing within 20 days of service of the notice if the custodians are not in agreement; or, the parties shall file an agreed order if the time sharing arrangement is modified by agreement.
The rule cites two Kentucky cases which provide the basis for the rule, either of which you can read on Google Scholar by clicking on the following links:
SUMMARY
Reviewing the different relocation rules of just these two states separated by the Ohio River illustrate the various issues that can arise in these cases. Parents wanting to move with their children are some of the most difficult cases that family court judges encounter on a weekly basis.
Remember:
- The rules you have to follow may (such as in Kentucky) or may not (such as in Indiana) be dependent on whether there is a joint or sole custody arrangement.
- The best practice is generally to provide notice to your local court and to any other party if you are moving, even if you are not aware of any existing orders for custody or parenting time.
- The time period for objecting to a relocation can vary from twenty (20) to sixty (60) days, but certain situations may require even more immediate action.
As always, do not rely on anything you read on the Internet as legal advice, and your particular situation should be reviewed with a competent family law professional who has experience in dealing with relocation issues so that you can comply with the rules in your area.
