Indiana Away Custody Agreements Can be Complex, Contentious

The case of D.C. v. J.A.C., Indiana Supreme Court, reveals the complexities of move-away custody cases in Indiana. touching.jpg

Because the question at hand involves a parents’ current and future relationship with their children, our Munster divorce lawyers know that these cases often involve heightened emotions and can quickly become bitter.

We understand that this is not a matter you want to leave to chance. That’s why we are dedicated to fighting for your rights and the best interest of your child’s future.

In this case, mother and father married in 1997 and had one child, a son, who was born six years later. When the child was 5 years-old, his parents decided to divorce, and at the time, they agreed to share legal custody of him. The agreement indicated that while the mother would be provided with physical residential custody (meaning this is where the child sleeps overnight), the father was granted parenting time consisting of two weekends a month and three overnight visits each week.

This arrangement worked well until the mother filed a notice in the summer of 2010 of her intention to relocate. She filed what is called a motion for temporary order permitting relocation. While that motion was pending, she moved with the boy to Nashville, Tenn. However, the following month, the court ruled on the matter, denying her motion. The mother complied with the court’s order to return the child back to Indiana.

At this point, the father filed a motion to modify custody in order to prevent the boy’s move, under Ind. Code 31-17-2.2-1. Under this statute, the parent who wishes to move holds the burden of proof in showing why the move is both legitimate and in good faith. For example, moving for the sole purpose of keeping your child away from his or her other parent is a request almost certain to be denied by the court, except for extenuating circumstances such as proven abuse or long-term incarceration.

In this case, the court responded by first appointing a guardian ad litem for the child. A few months later, a hearing was held, and the GAL testified that he didn’t believe a move out-of-state was in the child’s best interests. Other testimony considered was that of not only the mother and father, but both paternal and maternal grandmothers and the child’s godfather.

The district court sided with the father, providing that both parents would continue to hold joint legal custody, but the father would now be the primary physical custodian, and the mother would receive parenting time during any school holidays and other times she came to visit.

The Indiana Supreme Court then affirmed the trial court’s decision, finding that the neither the findings nor the judgement were clearly erroneous, as required for a reversal in these cases.

When the court is weighing whether to grant relocation, the following are the primary considerations:

  • The distance involved;
  • The hardship expense for the parent who is staying in-state to exercise his or her parenting time or grandparent visitation;
  • How feasible it will be for the child to maintain a relationship with the non-custodial parent;
  • Whether there is an established pattern of conduct on the part of the parent who is moving that indicates he or she is trying to curb the relationship between the non-custodial parent and the child.
  • The reason for the move (i.e., work, to care for an ailing parent);
  • Other factors that are considered in the best interest of the child (the child’s age, sex, relationship with siblings, school, church, etc.).

Regardless of the details of your case, call us today to see how we can help.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City. Call Toll Free 877-446-5294.

Additional Resources:
D.C. v. J.A.C., Indiana Supreme Court, Filed Nov. 13, 2012
More Blog Entries:
Indiana Supreme Court to Consider Revamping Child Custody Rules, Oct. 2, 2012, Highland Indiana Divorce Lawyer Blog