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 not to say that Indiana child custody modifications are solely based upon a child’s wishes. In fact, courts have traditionally been hesitant to do so. However, they are an “important consideration,” per a recent decision of Andrick v. Andrick by the Indiana Court of Appeals.

Here, a father sought modification of a child custody agreement involving his teenage son, who was living with his ex-wife, her new fiance, and her fiance’s two children. Although the lower court denied the modification, the court of appeals remanded the case. While Father had requested reversal of the trial court’s ruling, the appellate court was “not prepared to go that far.” It noted there was evidence in the case that could arguably support a result in favor of the mother, but there were erroneous findings by the lower court on crucial issues. There were also repeated citation by the trial court of incorrect legal standards, and thus the appeals court lacked confidence in the accuracy of the lower court’s judgment.more

According to court records from this Indiana child custody case, the boy was born in 1999. Father is not his biological father, but he adopted him in 2004. He was with the boy’s mother for four years (married for two of those years) and their divorce was finalized in 2007. At that time, Father was given “reasonable” parenting time, but that increased substantially following a petition to modify in 2010. His overnight visitations increased to 150 nights a year.

Over the next few years, the child’s grades and school attendance slipped. There were a number of issues going on, first being his parents’ separation. Then, his grandfather (mother’s father) became seriously ill and his mother had to spend a significant amount of time caring for him. The boy also spent a great deal of time with his sick grandfather, which caused him to miss a lot of days in school. After his grandfather’s death, the boy’s mother moved in with another man who had two children the boy’s age. He reportedly fought a lot with one of them.

The boy began seeing a counselor at his father’s behest and told the counselor he wished to move in with his father. He told the counselor about a “loopy” friend of his mother’s who was often at the house and also mentioned the conflict with his mother’s fiance’s children (one of whom he would have non-physical fights with almost daily). A guardian ad litem noted that the home smelled like animal urine, which mother attributed to one of her fiance’s children not properly cleaning the cat litter, as was his responsibility. The guardian ad litem also noted mold in the basement of the house that made her sick.

The counselor diagnosed the boy with adjustment disorder, the onset of which occurred after his parents’ separation. Father sought another modification of custody, citing the boy’s desire to live with him.

But as the case wore on, the boy started to do better academically and expressed a desire to continue attending his current high school (which he would not be able to do while living with his father). The court conducted an in camera interview with the boy, but did not make the results of that interview part of the court record. Subsequently, the court denied Father’s motion for modification.

On appeal, Father took note of the fact that the trial court misstated a number of the guardian ad litem’s statements and mischaracterized the reports from the child’s counselor. Plus, there was evidence the child had more recently indicated a desire to live with his father, but that had been misstated by the court as well.

The appeals court remanded, finding that while modification may not be in order, it had concerns that the trial court had misstated several important facts in its decision.

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

Additional Resources:

Andrick v. Andrick , April 29, 2016, Indiana Court of Appeals

More Blog Entries:

Man Protests Child Support Order to Pay for Child Not His, April 13, 2016, Indiana 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