Schrag v. Spear – Relocation of Custodial Parent Requires Strict Procedural Following

Anytime a custodial parent wishes to relocate with a child – whether it’s across the street or across the country – the parent must first notify the court and obtained permission.

Further, non-custodial parents have several options with how to proceed, particularly if they fear the move could have a detrimental impact on the parent-child bond.

Indiana Code 31-17-2.2-1 requires custodial parents to file a Notice of Intent to Relocate with the court at least three months prior to moving. Once the notice is filed, the non-custodial parent has 60 days in which to file an Objection to Relocation with the court. more Legally, a judge can’t prevent an adult from moving wherever he or she chooses. However, if the judge finds it is not in the best interest of the child to relocate, the judge may choose to alter the custody arrangement. It’s worth noting if no objection is filed within that 60-day window, the custodial parent is automatically given the right to move with the child.

However, if a custodial parent fails to follow this strict protocol of notification, the repercussions may be severe. Take, for example, the recent child custody dispute in Schrag v. Spear, a Nebraska Supreme Court case. (Although this matter was not one that originated in Indiana, the same general principles are still applicable.)

Here, according to court records, a child was born in 2007. The girl’s parents were never married and never lived together after her birth. When the child was 2, mother established paternity of the child through court order, and father was ordered to pay child support and one-half of day care expenses, while mother was granted custody. Father was granted visitation.

The child’s paternal grandmother had cared for the girl for extended terms while the mother was on tour as a singer, but the pair had a falling out when grandmother once told mother she could not care for the girl on an extended stay due to another family obligation. By the time mother was preparing to relocate, it had been two years since paternal grandmother had seen the child. Father, meanwhile, resided in Missouri.

In 2011, mother moved with child to Iowa and lived with her boyfriend and his parents, and the pair ultimately married. However, mother never obtained permission from the court in Nebraska to relocate with the child to Iowa. Father did not initially oppose the move, however, because he believed it to be temporary. When he came to understand it would be permanent, he sought a modification of custody. Ultimately, the court allowed the girl to stay in her mother’s custody and granted mother permission to move, with father having expanded visitation rights. It further agreed child would have no unsupervised contact with paternal grandmother.

The following year, mother divorced her new husband. On the same day she separated from him, she left with the child to move to New York with her new boyfriend, who was still married. The child returned to her father for visitation, but no mention was made of the move to New York.

It wasn’t until after the summer visitation father was informed of the move, and he disagreed it was best for the child. Further, mother had not obtained the court’s permission. She and the girl were wholly dependent on her new boyfriend for housing and other basic needs, as her annual income from singing totaled about $8,000. Plus, she had the child support from the girl’s father.

Father, meanwhile, was married with other children and working as a restaurant manager.

He petitioned trial court for custody – and it was granted. However, mother appealed, and appellate court reversed. But on appeal to the state supreme court, the high court reversed again.

The court noted parental relocation cases are “among the most complicated and troubling” that the court has to resolve. There are often legitimate competing interest, and courts have a tough time weighing what is truly in the best interest of the child. Sometimes, it’s an educated guess.

Here, the court indicated there was no merit to mother’s assertion that she needed to move in order to establish a new living arrangement and support system.She hadn’t proven the move enriched her career or that there was other legitimate motive. While it might have been a valid argument, she never showed that she moved with a job waiting for her or even a reasonable expectation of career improvement or prospects. Rather, she relied on a man she had known less than year who was still married to provide for her and her daughter.

Additionally, this wasn’t the first time mother moved the girl to another state surreptitiously without first obtaining father’s permission. Thus, it was determined trial court had not abused its discretion, and father should retain custody of the child.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources: Schrag v. Spear, Feb. 13, 2015, Nebraska Supreme Court More Blog Entries: In re Marriage of Gust – Spousal Maintenance Amount, Duration, Weighed, Feb. 15, 2015, Hammond Child Custody Attorney Blog