A Look at Indiana's Relocation Statute

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Posted in On September 28, 2014

Relocation of a Custodial Parent

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If you’re a custodial parent thinking about moving, you need to be aware of the Notice of Intent to Relocate statute under I.C. 31-17-2.2, which lays out specific requirements that a parent must follow in order to relocate.  Anyone who is subject to a custody order, parenting time order, grandparent visitation order, or child support order must file a notice with the court of their intent to relocate.
Under the statute, the notice must be sent to the non-relocating individual no later than 90 days before the intended move date.  I.C. 31-17-2.2-3 requires you to provide the following information within the notice:

  1. The new address, including the mailing address if it’s different than the street address;
  2. The home telephone number of the new residence;
  3. The date of the intended move;
  4. A brief statement of the reason for the move;
  5. A proposal for a revised schedule of parenting time or grandparent visitation;
  6. A statement that a parent must file an objection to the relocation of the child with the court not later than 60 days after receipt of the notice; and
  7. A statement that a non-relocating individual may file a petition to modify the custody order, parenting time order, grandparent visitation order, or child support order.

Now there are a few exceptions to the 90-day rule.  If you are unable to provide this information 90 days before your intended move, you can provide such within 10 days after you receive any of the above information, but it should be no later than 30 days before the intended move.
What next?  If you are the non-relocating individual you have the option to file an objection and request that the court grant a temporary or permanent restraining order to the relocation of the child.  This must be done within 60 days after you received notice.  It’s important that you don’t miss your deadline if you want to object to the move—if the court does not receive a motion of objection, the relocating parent will be allowed to relocate with the child.
What happens if the relocating individual filed a notice, but did not follow the 90-day requirement and the intended move date is quickly approaching?  Instead of waiting the 60 days to file a response, you would want to file an objection as soon as feasibly possible and seek a temporary restraining order.  At a temporary restraining order hearing, the court is going to consider whether the notice was timely filed and whether an agreement between the parties regarding a new parenting time schedule has been reached.  The same considerations will be taken if the relocating individual files the notice after the move has already taken place and the court can order the child to be brought back.
After an objection is filed, a hearing will be held in which both parties must present evidence regarding the move.  The statute places the burden of proof on the relocating individual.  When a move could potentially have a significant impact on parenting and/or grandparent visitation rights, it is not enough to want to move on a whim.  This means that the relocating individual must prove that the move is for a legitimate reason and done in good faith.  At this point, once proven, the burden of proof is going to shift over to the non-relocating individual to prove that the move is not in the best interests of the child.  Check out our previous blog, Child Custody What the Court Considers, for the factors the court considers when determining what is in the best interests of a child.
After all the evidence is heard, the court is going to determine what is in the best interest of the child and if that means a modification is necessary.  Now a court doesn’t have the power to force the relocating individual to stay, but it does have the power to modify the order, which could even mean placing primary custody with the non-relocating individual.  I.C. 31-17-2.2 provides the following factors a court shall consider:

  1. The distance involved in the proposed change of residence;
  2. The hardship and expense involved for the non-relocating individual to exercise parenting time or grandparent visitation;
  3. The feasibility of preserving the relationship between the non-relocating individual and the child through suitable parenting time and grandparent visitation arrangements. This will include consideration to the parties’ financial situations;
  4. Whether there is an established pattern of conduct by the relocating individual. This means the court is going to look to see if there is a history of promoting or thwarting a non-relocating individual’s contact with the child;
  5. The reason provided by the relocating parent for the move, as well as the reason the non-relocating parent is objecting; and
  6. Any other factors that may affect the best interest of the child.

This statute is designed so that no party may just pick up and leave without first giving the other party an opportunity to object.  The process may seem intimidating and lengthy, but with the help of an experienced attorney, the process can be simple.  If you are planning on relocating or have received one of these notices, give the attorneys at Banks & Brower, LLC a call today at 317.870.0019 or email us at info@banksbrower.com. We answer calls and emails 24/7/365.