Wednesday, October 22, 2014

Leaving on a Jet Plane

rights of relocation; burden of proof

From John Denver to  Aerosmith - What's the deal with Relocation in Indiana?

** Kids - Custody - Relocation **

John Denver wrote a great song that has been remade over and over throughout the decades, a song providing a bittersweet request for a lover to wait.   Denver, and later, Peter Paul and Mary, and Steven Tyler all sang the refrain -- Leaving, On a Jet Plane...  You may wonder, what does this have to do with divorce and custody in Indiana?  Well, if you get a divorce in Indiana, you are definitely leaving your spouse, so the leaving part applies... Whether you get to leave on the proverbial jet plane, later, (to another area of the state or out of state) and retain the same type of custody of your kids is another matter, entirely.

In any initial custody matter, or post-divorce custody matter, the Court will look at the best interests of the children. If one parent desires to relocate to another area in the State or to another State, there is a requirement, pursuant to Indiana Code Section 31-17-2.2-1.   This type of notice must be provided during the initial custody proceeding or after, upon any relocating parent's desire to move over 100 miles within the State, or out of State.  Indiana Law requires the relocating parent to provide notice to the non-relocating parent about the intent to move, along with other statutorily required information regarding the move, at least 90 days prior to the time at which the relocating parent intends to move, with some exceptions.

The non-relocating parent has 60 days in which to object to the proposed relocation. If no objection is made, the relocating parent may do so and custody remains the same. If an objection is made, the relocating parent then has the burden of proof to show that the proposed move is being made in good faith and for a legitimate reason.  Should the Court sustain the non-relocating parent's objection and modify custody as a result of any proposed relocation, the Court must do so only after weighing the best interests of the child, and whether the relocation creates a substantial change in the child's life.  A non-exhaustive list of things a Court will review are the child's ties to its community, to the child's family in the area in which they live versus the area to which the relocating parent desires to move, the interaction between the child and the non-relocating parent, and the mental health and stability of all parties involved, etc.

Essentially, when there are kids involved, and you get a divorce, it's not as easy to take off, John Denver or Aerosmith-style. There are considerations to be made, and you'll need to consult an attorney, review the factors in your case, and ensure that you have a handle on what the pros and cons are of your proposed relocation.

While no court may restrict your right to travel, a Court may determine that you may not get to take your children with you on a permanent basis.  Indiana Courts will favor keeping the kids near family, friends, schools, etc.  In order to prevail on a relocation motion, when you have primary custody and want to take the kids on that jet plane with you, you must have good faith, legitimate reasons ... not just wanderlust, and definitely not a desire to prevent the non-custodial parent from seeing his/her kid...  Typically, a Court will want to see reasons that encompass family support, job and life advancement, and better opportunities for both the relocating parent and child(ren). 

All this being said, each case is individual, unique, and cannot be commented upon in a generalized blog entry.  You've got to ensure you have an attorney who will take the time to walk you through the relocation process and can evaluate the evidence in your case for and against relocation. 

*The opinions expressed are of the blogger only and were not intended as legal advice or as an avenue to open a lawyer-client relationship.