As of July 1, 2006, a parent with custody or court-approved parenting time with a minor has to first file a notice with the court and send a copy to give notice to the other parent. The court may then choose – or the other parent may request – a hearing to determine whether there should be a change in existing child custody, visitation, or support. If the other parent has parenting time or is trying to obtain it, they must be afforded a copy of this required notice to the court.

The court can’t refuse to give you permission to move. However, it could refuse to allow you to take your child with you, or it could substantially alter the existing custody, visitation, or support orders if you go through with the move. The court is generally going to consider:

• Distance of the move;
• Difficulty for the other parent to exercise parenting time after the move;
• Whether the parent-child relationship can be preserved after the move;
• Whether there is a pattern of trying to support or deny contact between the child and the other parent;
• Reasons for the move;
• Reasons the other parent opposes the move.

In the end, the court will always consider what is in the best interests of the child.more

An experienced Hammond custody attorney can properly file the notice and argue your position if a hearing is set.

A situation where this issue previously arose was Wallerstedt v. Wallerstedt, before the Indiana Court of Appeals. Here, Mother and Father were married, had two children and then got divorced in 2004. At that time, Mother was awarded sole physical and legal custody of the children, while Father was awarded only supervised visitation, due to a protective order issued against him for domestic violence.

Four years after the divorce, Mother and Father reconciled. In the fall of 2010, Mother and her children moved from Indiana to Virginia, and the plan was that the father would follow after he completed his education. However, the parties’ relationship deteriorated and Father never made that move to Virginia. Ultimately, he remarried and had another child.

Then, in 2014, Father filed a petition with the court alleging parenting time contempt. That petition was dismissed a month later, but a new one was filed two months after that. The mother reluctantly returned to Indiana with the children and stayed with her mother’s family so that she could attend court hearings without driving back and forth from Virginia. Father filed a motion to modify custody and objected to Mother’s relocation to Virginia.

The trial court entered an order finding there was a substantial and continuing change (i.e., the mother’s relocation to Virginia) and that it was in the best interests of the children for Mother to live in Indiana and to grant joint legal custody to both parents, with Mother having primary physical custody. The court also made rulings with regard to the children’s schooling (mainly, that they should both attend public school, as opposed to home-schooling) and child support. Father was ordered to help pay for Mother’s relocation expenses.

Mother filed a notice to correct error, alleging Indiana’s relocation statutes aren’t applicable in this instance because the decision to move to Virginia was a joint one between the two and the father ultimately abandoned his family by not joining them. Also, Mother argued, he had not objected to the move for a full five years, which amounted to acquiescence to the move.

Relocation of a parent is governed by Indiana Code Chapter 31-17-2.2. However, Mother argued that because father acquiesced to relocation, he couldn’t challenge it now.

The Indiana Court of Appeals ruled that both parents failed to comply with relocation statutes. The mother should have filed a notice of relocation and the father should have objected earlier. However, the father in this case did acquiesce to the move. That meant that the child custody modification statute – not the relocation statute – applied. Ultimately, though, the court held that the trial court’s finding of significant distance between the children and their father, and the fact that there had been a substantial change in custody, was in the children’s best interests and not clearly erroneous.

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

Additional Resources:

Wallerstedt v. Wallerstedt, June 30, 2016, Indiana Court of Appeals

More Blog Entries:

Nolan v. Huff – Paramours Complicate Indiana Child Custody Cases, June 17, 2016, Hammond Child Custody Lawyer Blog

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.more

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.

Additional Resources:

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

This is true even when natural parents initiate an action to re-obtain custody of a child. In those situations, the burden of proof doesn’t automatically shift back to the parent. Instead, it’s always on the third party. Parents and third parties aren’t, as the courts have held, on a “level playing field” when it comes to custody. Parents will always have the upper hand.

However, this does not mean parents don’t lose these cases. In fact, it happens all the time and it’s often the result of being unprepared for hearings and trials – including failing to adhere to court recommendations and guidelines from previous hearings. more

A Hammond child custody attorney can help in these matters, whether it is guiding parents on the path toward regaining custody of their children, or helping third parties obtain or maintain custody where it is in the child’s best interests.

In the recent case of Nelson v. Nelson, before the Indiana Court of Appeals, a mother who signed over custody of her daughter to her mother and aunt sought to regain custody of the girl, now 8. However, the child’s grandmother and great-aunt argued the child would be better served remaining in their care. The court agreed, as did the Indiana Court of Appeals.

Mother pointed to the precedent set in the case of In re Guardianship of B.H., but the courts analyzed the totality of the circumstances in denying her request.

According to court records, the little girl was born in October 2006. At the time, her mother was unmarried and had a history of difficulty with drugs and the criminal justice system. The girl spent all but eight months of her life living with her maternal grandmother and great-aunt in adjoining apartments.

In 2012, when the girl was six-years-old, her grandmother and great-aunt filed for custody of the girl. At the final hearing, the girl’s mother testified she had no job, no earnings, no motor vehicle and a number of outstanding criminal issues, including a pending trial for possession of methamphetamine. The mother indicated she believed it was in the best interest of her daughter to be in the custody of her mother and aunt.

The girl’s father was neither present nor involved. Trial court grated that petition.

Fast-forward two years. The girls’ mother sought to terminate that custody order .She had since gotten married. She had twins. She was on probation for possession of methamphetamine, but she hadn’t tested positive for the drug. She completed substance abuse treatment. She got a job part-time at a hotel and was living in a one-bedroom apartment with her husband (not the father of the twins) and the babies. Her husband was also on probation for DUI.

Mother noted she had exercised her visitation with her daughter, which included nights and weekend visits every weekend or every other weekend.

Still, the girl’s grandmother and great-aunt did not agree with the mother’s assertion that it was in the girl’s best interest to be back in her custody. They believed the girl should stay with them.

Trial court denied mother’s petition, and appeals court affirmed. Ultimately, the courts found the third parties in this case proved the child’s best interests were substantially and significantly served by placement with them.

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

Additional Resources:

Nelson v. Nelson, Sept. 24, 2015, Indiana Court of Appeals

More Blog Entries:

Carie v. Carie – Division of Property and the “Marital Pot” in Indiana Divorce, Sept. 20, 2015, Hammond Child Custody Lawyer