Can My Ex Move Out of State With My Child in Indiana?

It depends on the circumstances of the parties and their existing orders.  If there is an established parenting time order, a person has filed a motion seeking custody or parenting, or a person has executed a paternity affidavit, then the parent seeking to relocate has to file a relocation notice with the court.[1]

What Must Be Included in a Relocation Notice in Indiana?

Under Indiana Code 31-17-2.2-3, the person seeking to move must provide a relocation notice to the court and the other parties who have visitation rights containing the following:

  • the new address,
  • Telephone number,
  • intended relocation date,
  • a brief statement of the reasons for the relocation,
  • a statement outlining how visitation may change with the move, and
  • a statement advising the nonrelocating parent that they must file a response to the relocation notice within 20 days after service of the notice.

The relocating parent must also tell the other parent that they have a right to file a motion to prevent relocation or file a motion to modify custody or parenting time.  All parenting time orders remain in effect until the order is modified.  If a parent receives a relocation notice and does not timely file a response, then the other parent can move.[2]    If a party does not object to the relocation, a response is not required, but the court will require the parties to tender a written agreement outlining the new custody, parenting time, and support arrangements due to the relocation.

How Must the Relocation Notice Be Sent to the Other Parent?

The notice must be sent registered or certified mail to the other party.   The notice must be sent no later than 30 days before the proposed relocation or 14 days after the party becomes aware of the relocation, whichever is sooner.   If the court has granted grandparent visitation rights, then the grandparents must be notified as well.

Can a Parent Move Out of State from Indiana if Paternity Has Not Been Established?

Yes.  If paternity has not been established via court order or paternity affidavit and nothing is pending to establish custody or parenting time, then a parent may not be required to tender a Relocation Notice, even if the parties have informally been working out visitation, unless other exceptions or conditions exist.

Because such exceptions or conditions may be applicable, those seeking to move out-of-state in circumstances where paternity has not been established should always consult with an Indiana Family Law before taking action.  Additionally, fathers wishing to better secure their rights to custody, parenting time, and other decision-making should likewise seek legal counsel as soon as possible.

What Exceptions May Exist to the Relocation Notice Requirement in Indiana?

There are other exceptions to the relocation notice requirement under Indiana law.[3]  As an example, by statute, a relocation notice is not required if the relocation actually reduces the distance between the parties’ residences.  Likewise, a relocation notice is not required if the move will not increase the distance between the parents’ residences by more than twenty (20) miles.   In both of these cases, the relocation must still allow the child to stay in the current school system.

What Can I Do to Prevent Me Ex from Taking My Child Out-of-State?

As soon as you become aware that a relocation is being considered,  a motion should be filed with the court to prevent the relocation.  It may be difficult to prevent a relocation if you wait until the relocation has occurred and the other parent and child have established roots, such as obtaining employment and starting school in the new area.

The court will set a hearing on the relocation request or objection to relocation and determine if the relocation should proceed and/or the current parenting time order should be changed.  The court may also grant a temporary motion to prevent relocation if the court finds that the relocation notice has not been properly given, that the other parent has relocated without your permission or the permission of the court (if required), or, after a temporary hearing, the court finds that there is likelihood that the court will not grant the relocation request.[4]

At this hearing, the court is supposed to consider a number of factors in looking at a relocation case[5], including:

  • the distance involved in the relocation;
  • hardship and expenses involved for non-relocating individual to exercise parenting time or grandparent visitation;
  • the feasibility of preserving the relationship between the parents and the child, including financial considerations of the parties;
  • whether there has been a pattern of conduct by the relocating individual to either promote or thwart the non-relocating individual’s contact with the child;
  • the reasons for the relocation and the reason for objecting to the relocation; and
  • other factors affecting the best interests of the child.

The initial burden of proof is on the person seeking to relocate. Their burden is to convince the judge that relocation is made in good faith and for a legitimate reason.[6]   If the person meets that burden of proof, then the burden of proof shifts to the non-relocating parent to show that the proposed relocation is not in the best interest of the child.

If I have Equal Parenting, Can I Prevent My Ex from Taking Our Child Out-of-State in Indiana?

In Indiana, either parent may file a relocation request, regardless of the parenting time arrangements.   As a practical matter, parents with equal or nearly equal parenting will have a more difficult time relocating because of the significant impact on parenting time for the other parent.    A parent who has equal parenting with the other parent (approximately 182 overnights) will, as a practical matter, have a harder time convincing a judge to reduce the other parent’s time to potentially geographic distance visitation (around 70 overnights).

What is Geographic Distance Visitation Under Indiana Law?

Under Indiana law, there is a specific schedule for geographic distance visitation.   While not mandatory, it is a common calendar.   That calendar amounts to around 70 overnights of parenting time a year.   By contrast, the minimum guidelines for parenting time for parents who live in the same area would be around 98 overnights.   The court may, however, look at adjusting the support based upon the increased transportation expenses associated with the relocation, such as airline flights, hotel costs, or other transportation related expenses.

Do I Still Have to Pay Support if My Child Moves Out of State?

Yes, child support will continue and may actually go up if the non-relocating parent’s overnights will be substantially reduced.

Indiana Laws on Moving Out of State with Child Following Divorce

For more information on moving out of state and the requirements under Indiana law, please see Indiana Code 31-17-2.2-1, et seq.

 


[1] Indiana Code 31-17-2.2-0.5.

[2] Indiana Code 31-17-2.2-5.

[3] Indiana Code 31-17-2.2-1.

[4] Indiana Code 31-17-2.2-6.

[5] Indiana Code 31-17-2.2-1

[6] Indiana Code 31-17-2.2-5.

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