In 2006, the Indiana General Assembly added to the Family Law Title of the Indiana Code an entire chapter concerning the relocation of a custodial parent. See Ind. Code § 31-17-2.2. This new chapter was summarized by our Supreme Court in Baxendale v. Raich, 878 N.E.2d 1252 (Ind.2008).
“Relocation” is “a change in the primary residence of an individual for a period of at least sixty (60) days,” and no longer requires a move of 100 miles or out of state. Id. at 1255-56. A “relocating individual” is someone who “has or is seeking: (1) custody of a child; or (2) parenting time with a child; and intends to move the individuals principal residence.” Id. at 1256. A “nonrelocating parent” is someone “who has, or is seeking: (1) custody of the child; or (2) parenting time with the child; and does not intend to move the individuals principal residence.”
Upon motion by either parent, the court must hold a hearing to review and modify the custody “if appropriate.” Id. Per this statute, the trial court may, but is not required to, order a change of custody upon relocation. Id. at 1253. In determining whether to modify a custody order, the court is directed to consider the factors set out in I.C. § 31-17-2.2-1(b), which are specific to relocation. Id. I.C. § 31-17-2.2-1(b) states the factors as:
(1) the distance involved in the proposed change of residence;
(2) the hardship and expense involved for the nonrelocating individual to exercise parenting time or grandparent visitation;
(3) the feasibility of preserving the relationship between the nonrelocating 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 relocating parent’s reasons for relocating the child and the nonrelocating parent’s reasons for opposing the relocation of the child; and
(6) other factors affecting the best interests of the child.
I.C. § 31-17-2.2-1(b).
Under I.C. § 31-17-2.2, there are two ways to object to a proposed relocation: a motion to modify a custody order under I.C. § 31-17-2.2-1(b), or a motion to prevent the relocation of a child under I.C. § 31-17-2.2-5(a). Swadner v. Swadner, 897 N.E.2d 966, 976 (Ind. App.2008), See Baxendale at 1256. In regards to a motion to prevent the relocation of a child, Indiana Code section 31-17-2.2-5 specifically provides that:
(a) Not later than sixty (60) days after receipt of the notice from the relocating individual under IC 31-14-13-10 or this chapter, a nonrelocating parent may file a motion seeking a temporary or permanent order to prevent the relocation of a child.
(b) On the request of either party, the court shall hold a full evidentiary hearing to grant or deny a relocation motion under subsection (a).
(c) The relocating individual has the burden of proof that the proposed relocation is made in good faith and for a legitimate reason.
(d) If the relocating individual meets the burden of proof under subsection (c), the burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child.
If the non-relocating parent does not file a motion to prevent relocation, then the relocating parent with custody of the child may relocate. Baxendale at 1256, see I.C. § 31-17.2.2-5(e). If the non-relocating parent does file a motion to prevent relocation, then the relocating parent must first prove that “the proposed relocation is made in good faith and for a legitimate reason.” Swadner, 897 N.E.2d at 976 (quoting I.C. § 31-17-2.2-5(c)). If this burden is met, then the non-relocating parent must prove that “the proposed relocation is not in the best interests of the child.” Id. (quoting I.C. § 31-17-2.2-5(d)). Under either a motion to prevent relocation or a motion to modify custody, if the relocation is made in good faith “both analyses ultimately turn on the best interests of the child.” Swadner, 897 N.E.2d at 976.
In general then, the court must consider the financial impact of relocation on the affected parties and the motivation for the relocation in addition to the effects on the child, parents and others identified in Ind.Code § 31-17-2-8, which governs initial child custody orders in accordance with the best interests of the child, which factors include:
(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 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:
(B) school; and
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.
I.C § 31-17-2-8.
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