Is Relocation of either Parent a Basis to Modify Physical Custody?

People sometimes move, and separated parents with a custody order are no exception. However, when raising children together from separate homes, a move can disrupt the current custody and parenting time order. This blog discusses Indiana law as it pertains to relocation and modification of physical custody.

A parent who has, or is seeking, custody or parenting time, and is intending to move, must follow Indiana’s statute governing relocation. The statute requires a party who is intending to move a distance of more than 20 miles from the other party to file a notice of intent to relocate with the court. The code further provides that after filing of the notice and upon motion of a party “the court shall set the matter for a hearing to allow or restrain the relocation of a child and to review and modify, if appropriate, a custody order, parenting time order, grandparent visitation order, or child support order.”

This is a different procedure than that commonly used for a custody modification and requires the court to consider the following factors in determining whether to modify the custody order: (1) The distance involved in the proposed change of residence. (2) The hardship and expense involved for the non-relocating individual to exercise parenting time or grandparent visitation. (3) 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. (4) 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. (5) The reasons provided by the: (A) relocating individual for seeking relocation; and (B) non-relocating parent for opposing the relocation of the child.

In addition to these factors, the court must also consider the factors provided by Indiana’s statute regarding change of custody and the best interests of the child: “(1) The age and sex of the child. (2) The wishes of the child's parent or parents. (3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age. (4) The interaction and interrelationship of the child with: (A) the child's parent or parents; (B) the child's sibling; and (C) any other person who may significantly affect the child's best interests. (5) The child's adjustment to the child's: (A) home; (B) school; and (C) Community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent….” In determining the child’s best interests, Indiana’s Court of Appeals has said that all the factors should be taken as a whole and the effect of the move on the child, not any one particular factor, is given the most weight.

Our courts have specifically stated that a move to another state is not in itself a reason to modify custody. Instead, a proposed relocation must be made in good faith and for a legitimate reason. Once a relocating parent has met the burden of proving that it is, the burden shifts to the non-relocating parent to prove that the move is not in the child’s best interests.

If you are planning to relocate, or your child’s other parent has provided you with notice of their intent to relocate, the attorneys at Ciyou & Associates, P.C. can help you fight for your custody or parenting time rights. This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. It is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.


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