In Indiana, when a custodial parent wishes to move either out of state or out of the country, he or she needs to comply with Indiana Code Chapter 31-17-2.2, which requires notification of the courts and the other parent. The law applies whether parents are divorced, separated, or never married.
In cases where the intended move is extremely far away – across the country or overseas – both parents involved should consult with an Indiana child custody attorney because the ramifications of such a move can be major. The court cannot prohibit someone from moving, but it can restrict a parent from taking the child with them. And in the event you are the non-custodial parent, it’s important to consult with a lawyer if you wish to oppose an ex-spouse’s move or modify an existing custody arrangement. Failure to do so in a timely manner could complicate your case, and taking matters into your own hands could put you at a legal disadvantage.
Take the recent case of Martinez v. Cahue, an appeal before the U.S. Court of Appeals for the Seventh Circuit, which has jurisdiction over all of Indiana. This was a case involving an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division. According to court records, a young boy lived exclusively with his mother up until the age of seven, although his father lived nearby and saw him often. Mother and father had their own custody, visitation, and support arrangement, though it was never formalized by a court order. Then, when the boy turned seven, his mother moved to Mexico, her native country, and he went with her.
About a year later, his father persuaded his mother to allow him to return to Illinois for a visit. However, after the agreed-upon time, the father refused to allow the boy to return to Mexico.
His mother then petitioned the federal court for his return under the Hague Convention on Civil Aspects of International Child Abduction, to which both the U.S. and Mexico are parties.
The district court found that the boy’s habitual residence should not be shifted to Mexico, and thus Illinois was the boy’s habitual residence. With that, the mother’s petition was dismissed. But on appeal, the justices found that the district court had asked the wrong question, and therefore reached an erroneous conclusion. The lower court had overlooked the fact that at all times relevant, the mother had sole custody of the boy under Illinois law, while the father had no right of custody under either state law or the Hague Convention. What that means is that it was only the mother’s intention that mattered, and in this case she intended for her son’s habitual residence to be in Mexico. This means the father’s decision to keep the child in Illinois against the mother’s wishes was wrongful and he was required to return him to his mother in Mexico.
This doesn’t mean the father has no right whatsoever to see the child. In fact, under the Hague Convention, he does have the right to visitation with his son. But the problem was that he went about exercising his right in the wrong way. Illinois law presumes that the mother of a child born out-of-wedlock has sole custody of that child, and absent a court-ordered visitation schedule she was not constrained by either state law or the Convention from taking her son to relocate wherever she wished. Joint custody isn’t something that arises automatically. It has to be granted by the court.
In this case, the court noted the father had conversations with a family law attorney and state department personnel at which point he became aware of his legal rights and remedies. However, he declined to pursue them and then took advantage of the mother’s good faith when she agreed to a visit. The court ruled that rewarding the father’s “self-help strategy” in this case would have a damaging effect on the intended deterrent of such action as laid out in the Convention.
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.
Martinez v. Cahue, June 24, 2016, U.S. Court of Appeals for the Seventh Circuit
More Blog Entries:
Andrick v. Andrick – Indiana Child Custody Modification Order Affirmed in Part, Remanded in Part, May 20, 2016, Hammond Child Custody Lawyer Blog