Wallerstedt v. Wallerstedt – Relocation in Indiana Child Custody Cases

When the custodial parent of a minor child in Indiana plans to move to a new residence, that parent must understand his or her rights or obligations with respect to child custody.suitcase

As of July 1, 2006, a parent with custody or court-approved parenting time with a minor has to first file a notice with the court and send a copy to give notice to the other parent. The court may then choose – or the other parent may request – a hearing to determine whether there should be a change in existing child custody, visitation, or support. If the other parent has parenting time or is trying to obtain it, they must be afforded a copy of this required notice to the court.

The court can’t refuse to give you permission to move. However, it could refuse to allow you to take your child with you, or it could substantially alter the existing custody, visitation, or support orders if you go through with the move. The court is generally going to consider:

  • Distance of the move;
  • Difficulty for the other parent to exercise parenting time after the move;
  • Whether the parent-child relationship can be preserved after the move;
  • Whether there is a pattern of trying to support or deny contact between the child and the other parent;
  • Reasons for the move;
  • Reasons the other parent opposes the move.

In the end, the court will always consider what is in the best interests of the child.

An experienced Hammond custody attorney can properly file the notice and argue your position if a hearing is set.

A situation where this issue previously arose was Wallerstedt v. Wallerstedt, before the Indiana Court of Appeals. Here, Mother and Father were married, had two children and then got divorced in 2004. At that time, Mother was awarded sole physical and legal custody of the children, while Father was awarded only supervised visitation, due to a protective order issued against him for domestic violence.

Four years after the divorce, Mother and Father reconciled. In the fall of 2010, Mother and her children moved from Indiana to Virginia, and the plan was that the father would follow after he completed his education. However, the parties’ relationship deteriorated and Father never made that move to Virginia. Ultimately, he remarried and had another child.

Then, in 2014, Father filed a petition with the court alleging parenting time contempt. That petition was dismissed a month later, but a new one was filed two months after that. The mother reluctantly returned to Indiana with the children and stayed with her mother’s family so that she could attend court hearings without driving back and forth from Virginia. Father filed a motion to modify custody and objected to Mother’s relocation to Virginia.

The trial court entered an order finding there was a substantial and continuing change (i.e., the mother’s relocation to Virginia) and that it was in the best interests of the children for Mother to live in Indiana and to grant joint legal custody to both parents, with Mother having primary physical custody. The court also made rulings with regard to the children’s schooling (mainly, that they should both attend public school, as opposed to home-schooling) and child support. Father was ordered to help pay for Mother’s relocation expenses.

Mother filed a notice to correct error, alleging Indiana’s relocation statutes aren’t applicable in this instance because the decision to move to Virginia was a joint one between the two and the father ultimately abandoned his family by not joining them. Also, Mother argued, he had not objected to the move for a full five years, which amounted to acquiescence to the move.

Relocation of a parent is governed by Indiana Code Chapter 31-17-2.2. However, Mother argued that because father acquiesced to relocation, he couldn’t challenge it now.

The Indiana Court of Appeals ruled that both parents failed to comply with relocation statutes. The mother should have filed a notice of relocation and the father should have objected earlier. However, the father in this case did acquiesce to the move. That meant that the child custody modification statute – not the relocation statute – applied. Ultimately, though, the court held that the trial court’s finding of significant distance between the children and their father, and the fact that there had been a substantial change in custody, was in the children’s best interests and not clearly erroneous.

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

Additional Resources:

Wallerstedt v. WallerstedtJune 30, 2016, Indiana Court of Appeals

More Blog Entries:

Nolan v. Huff – Paramours Complicate Indiana Child Custody Cases, June 17, 2016, Hammond Child Custody Lawyer Blog