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I’m the Custodial Parent – Can my Ex-Spouse Prevent Me from Moving?

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bigstock-one-caucasian-couple-man-and-w-32115563-237x300No. You (the “Relocating Party “) are free to move anywhere you want. However, if your ex (or any other individual with court-ordered custody or visitation rights) (the “Non-relocating Party”) objects to the children’s relocation, you will need the Court’s approval to take the children with you.

The Relocation Statute

Pursuant to Indiana Code 31-17-2.2, any Relocating Party who has or is seeking custody or parenting time must give written notice (the “Notice”) of his or her intention to relocate: 1) to the Court with jurisdiction over the children and 2) to the Non-relocating Party. Notice must be sent by Certified Mail and must contain all of the information set forth in the statute. These requirements apply to both custodial and non-custodial parents regardless of whether they are moving across the country or across the street! The required information includes, among other things, the following:

  • The new address and telephone number.
  • The statement of the reasons for the proposed relocation.
  • A proposal for a revised schedule of parenting time.
  • A statement informing the Non-relocating Party that any objection to the children’s relocation must be filed within sixty (60) days after receipt of the Notice, and
  • A statement informing the Non-relocating Party that they may file a petition to modify a custody order, parenting time order, grandparent visitation order, or child support order.

What Happens If The Non-Relocating Party Doesn’t Object

If the Non-relocating Party fails to file an objection within sixty (60) days of receiving the Notice, the Relocating Party may move and the current custody, parenting time and child support orders will remain in place.

What Happens If The Non-Relocating Party Objects?

Within sixty (60) days of receiving a Notice, the Non-relocating Party may file a motion seeking a temporary or permanent order to prevent the relocation of a child and/or a petition to modify the existing custody, parenting time, child support or grandparent visitation orders. Objections are rarely filed unless the relocation will take the child a significant distance away from the Non-relocating Party. If the Non-relocating Party files such a motion and requests a hearing, the Court will set a date for a full evidentiary hearing.

Initially, the Relocating Party must show that the intended move is being made in good faith and for a good reason. An example of a “good” reason to move a child away from the Non-relocating Party might be a better job opportunity that will significantly increase the child’s standard of living. An example of a “not so good” reason might be a desire to move in with a new significant other. Some courts have even ruled that a desire to move closer to one’s parents is not a good reason for taking a child away from one of HIS parents. If the relocating parent intends to move for a “not so good” reason, then the children will not be permitted to relocate.

If the Relocating Party proves that the relocation is being made in good faith and for a good reason, then the burden of proof switches to the Non-relocating Party, who must show that the relocation will not be in the child’s best interests. This evidence may include proof that:

  • The child has significant ties with the Non-relocating Party that cannot be maintained if the child moves,
  • The child has significant ties with other family members that cannot be maintained if the child moves,
  • The child has significant ties in the community, school, or church, that are in the child’s best interests and cannot be maintained if the child moves,
  • The Relocating Party has a pattern of attempting to alienate the child from the Non-relocating Party,
  • The benefit of any pay increase is lost because of the increased living expenses in the new city,
  • The benefit of any pay increase is lost because of a decrease in child support and increased expenses associated with transportation for parenting time.
  • Schools in the new city do not compare well with the schools where child
  • The new city may have more crime or juvenile delinquency as shown by a comparison of police reports.

After all the evidence is admitted, the Court must weigh the statutory factors normally considered in a change of custody – in addition to the factors associated with the move itself. The Court will then render a decision as to whether the relocation is or is not in the child’s best interests. If the relocation is not in the child’s best interests, the non-relocating party will be awarded custody and the parenting time and child support orders will be appropriately modified.

Should I Reconsider a Move?

Probably – A move across town is not likely to result in an objection. However, while your ex-spouse cannot prevent you from moving, any custodial parent contemplating a long-distance move away from an involved non-custodial parent should think long and hard before making that decision. The risks of losing custody are high in a relocation case, and the cost of litigation is expensive. Worse yet, regardless of the outcome, parents frequently lose the ability to co-parent following a relocation litigation. You should talk to an attorney before you make this decision. You should also talk to the Non-relocating Party to find out if he or she would object to the move. Please note, however, that you must file the Notice even if the non-relocating parent has no objection.

In the long run, the real loser in a litigated relocation case is the child who will be separated for long periods of time from one or the other of the two most important people in his or her life. That fact is the one to reconsider.

Can I Reduce the Likelihood of Litigation If a Move Is Mandatory?

Yes – If you determine that your relocation is absolutely mandatory, there are a number of things you can do that might reduce or eliminate the need for litigation. Here are some examples:

  • Acknowledge to yourself that the Non-relocating Party (assume that we are talking about the noncustodial parent) is every bit as important to your child as you are.
  • Figure out in advance all the ways you can keep your child connected to the Non-relocating Party if the child relocates with you. Be sure you offer the same parenting time schedule you would want for yourself if the Non-Relocating Party wins custody. For instance, some of the things you might do to stay connected would include:

I) Arranging Skype conversations at a set time every day.

II) Creating a parenting time calendar that results in the same number of overnights currently being exercised (such as longer summer or Christmas parenting time, every Spring Break, or long weekend visits for every Monday or Friday Holiday).

  • Plan on paying a greater share of transportation costs or reducing the child support obligation since the relocation benefits you.
  • Do not file a Notice of Intent to Relocate without first having a private conversation with the Non-relocating Party.
  •  Acknowledge to the Non-relocating Party that he/she is every bit as important to the child as you are.
  • Show the Non-relocating Party all the ways he/she can stay connected to the child if you move and then ASK for cooperate in the relocation effort.
  • Show the Non-relocating Party all the ways you would want to stay connected to the child if the Court awards custody to the Non-relocating Party.
  • Don’t “assume” you will win. That assumption will almost certainly prevent you from negotiating a good outcome.

Carol offers free consultations and will schedule flexible appointments in order to accommodate your work schedule. Schedule your FREE consultation today.