After an initial determination of physical and legal custody of children in a divorce decree or order establishing paternity and custody and parenting time, time may pass, and the child custody order no longer meets the children’s best interests. This is when a parent may file a modification for physical custody. What this seeks to do is modify the current custody order and, after hearing the evidence on the modification petition, change physical custody from the custodial parent and award it to the former non-custodial parent. To do so, the court must determine there has been a substantial change in circumstances and modification is in the children’s best interests.
As a modification of physical custody is addressed throughout this blog, the modification statute is set forth in full as follows: 1
“(a) The court may not modify a child custody order unless: (1) the modification is in the best interests of the child; and (2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 of this chapter . . . .(b) In making its determination, the court shall consider the factors listed under section 8 of this chapter. (c) The court shall not hear evidence occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described in section 8 . . .of this chapter.” Ind.Code 31-17-2-21.
When a court initially determines physical custody, there is no preference in favor of either parent. However, once the initial custody order is issued, trial courts place significant weight on a child’s needs for stability and permanency and heavily weigh this in deciding any request to modify physical custody to the non-custodial parent. It is not that a court will not modify physical custody if it is in the children’s best interest, but there must be a substantial change in circumstance.
There is no legal guidance, other than the standard of a “substantial change”, on when a parent should consider modifying an existing child custody order. One way a non-custodial parent may weigh his or her desire to seek a modification of physical is to consider if the modification, if granted, is better or worse for the children and the actual or potential harm caused by the interruption of the stability and change in their current home.
All this stated, there are two (2) basic ways a non-custodial parent may prove a substantial change in circumstances, and it is in the children’s best interests that custody be modified. Ind.Code 31-17-2-21. The first is a significant incident that occurs with the custodial parent that the non-custodial parent can prove in court. This might be an arrest, particularly if the child were present when the custodial parent was arrested. At present, many parents are struggling with mental health and addiction issues. If this is impacting the children in a significant way or placing them in danger, this is likely a substantial change in circumstances, and it is in the best interests of the child that physical custody be modified to the non-custodial parent. Ind.Code 31-17-2-21.
The second way a parent may prove a substantial change to support their physical custodial modification petition is to show a pattern of behavior by the custodial parent. For instance, the custodial parent may deny or interfere with parenting time. If this is occasional, it is unlikely to support a physical custody modification. However, a pattern of this behavior undermines the children’s relationship with the noncustodial parent. At some indeterminate time, this may add up and form the basis for a modification of physical custody.
As noted throughout this blog, a trial court can consider any relevant evidence in a modification proceeding. Clearly, the children’s needs usually change slowly, and the custodial parent should meet such changing needs. An example can be found in the statute that lists some of the considerations a court may weigh in considering a petition to modify physical custody. This is the statutory language that a court should give additional weight to the wishes of children fourteen (14) years of age or older. This may be the basis a court will find to be a substantial change in circumstances to modify custody. Again, the change must be in the children’s best interests. Thus, if a child this age wants to live with a same-sex parent or the opposite sex parent, and their rationale is sound, the court may find this constitutes a substantial change in circumstances and grant the non-custodial parent’s petition to modify custody. On the other hand, if this child just wants to live with the non-custodial parent because he or she has more lax household rules, particularly as it relates to dating, the court may believe this is unsound reasoning and deny the non-custodial parent’s modification petition.
As addressed in other places in this blog, a non-custodial parent’s petition to modify custody can be based on any relevant evidence that demonstrates a substantial change in circumstances and a modification of physical custody is in the children’s best interests. Ind.Code 31-17-2-21. Clearly, the environment the children live in is a factor a court could consider. There are any number of factual scenarios that may evidence the environment the children live in is not in their best interest. A scenario occurring with more frequency is a decline in the custodial parent’s mental health or substance abuse. Sometimes this may be apparent and at other times not. However, if a non-custodial parent suspects this to be the case, he or she may look at school records to see if the children’s grades are declining or the children are having excessive times of being tardy to school or absences.
What do you do if you are the non-custodial parent and suspect this? This is a question to carefully consider with experienced domestic counsel. One course of action would be to file a modification petition, conduct discovery, and ask the court to order drug screens. This is a common scenario domestic attorneys are presented within their practice. After discussion and analysis with your counsel, you can craft a careful plan to address changes in the child’s environment. Some environmental factors are not directly related to the custodial parent, but instead the custodial parent’s action or inaction to address these environmental facts. There are tools the non-custodial parent can use with experienced domestic counsel to address any environmental factors that might rise to the level of a substantial change in circumstances, and it is in the child’s best interests’ custody be modified to you. Ind.Code 31-17-2-21.
It is frequent that custodial and non-custodial parents disagree about a child’s mental health or emotional disorder. In some cases, this is addressed and decided by the parent who has legal custody. Or the parties ask the court to decide this legal custody matter. Nevertheless, even if this legal custody decision has been made, it is common that a parent does not agree and refused to do any number of things from taking the child to therapy to administering medications. If this is the case, and it is the custodial parent who refuses to act, this is a strong case to seek a modification of physical custody to the non-custodial parent. This may be accompanied by a contempt petition. Clearly, failing to follow through with treatment or to administer medications puts the child at risk. With medication and therapies, it is common that parents disagree and become involved in significant litigation. In some cases, if the risk of harm to the child is enough harm to the child’s mental or emotional health, the court could order the former custodial parent to have supervised visitation to ensure this risk to the child stops.
One topic not often discussed with respect to a non-custodial parent filing a modification petition to obtain physical custody is what happens if there is a true emergency. In these cases, the court is likely to entertain an emergency hearing seeking a modification of custody to the non-custodial parent. With an apparent mental health crisis plaguing the United States in connection with various issues COVID-19 has arisen, it is foreseeable courts may well see an uptick in emergency modification petitions. If a parent is arrested for DUI, buying or selling drugs, going into rehab, and numerous other scenarios, a court is likely to provide an immediate hearing and find this constitutes a substantial change in circumstances and modify custody to the non-custodial parent at least on a temporary basis. Ind.Code 31-17-2-21.
To act on the emergency creates a great deal of work for counsel and is time-intensive. Counsel must learn and be informed about the emergency, draft an emergency petition to modify custody, file it and get an order for an emergency hearing. At this point, counsel must get the custodial parent served with the emergency petition and prepare for the hearing. There are numerous other details that must be addressed, such as gathering evidence for the emergency hearing, which may include issuing and serving subpoenas on third parties and preparing for the same. If the non-custodial parent lives out of state, he or she must fly in for the emergency hearing unless the court permits it to be by video. These cases can be expensive but necessary.
Under the trial rules, in extreme situations, the divorce court may issue an ex parte order when the custodial parent is not heard or served with the emergency petition before the court issues an emergency order modifying custody. It takes an exceptional case to meet this burden. If this is the case, the non-custodial parent can obtain this ex parte order and then, with law enforcement, if necessary, take custody of the children. In the final analysis, the trial court can act in any way necessary to protect children if they are in danger in the custodial parent’s care.
Unless a non-custodial parent has supervised visitation and a designation of who should take care of the children in the event of their incapacity or death, the non-custodial parent who survives does not have to file a petition to modify custody or otherwise act in the divorce court upon the death of a custodial parent. They simply take custody of the children, with police assistance, if necessary, if they are being held by any third party. 2
One common mistake a non-custodial parent may make is to seek a modification of custody because of a significant change in their life. They may have overcome addiction or met a new significant other. A significant change in a non-custodial parent’s life is not, standing alone, reflective of a significant change as it relates to the children. In fact, these changes in the non-custodial parent’s life may have little or no impact on the children’s life. This may not be the case but a non-custodial parent and his or her counsel must develop the evidence to show this is substantial change connected with the children and it is in their best interests to have custody modified. Ind.Code 31-17-2-21.
If the children’s physical, mental, or emotional conditions are declining while in the custodial parent’s care and he or she fails to address these problems, as with any other negative changes for the children in the custodial parent’s care, it may be evidence a substantial change in circumstances has occurred and it is in their best interests that physical custody be modified to the non-custodial parent. Ind.Code 31-17-2-21. Any changes in the child’s conditions could be a variable the court considers in the children’s best interests, including those set forth in the by statute the court considers in passing on all custody petition on Indiana Codes 31-17-2-8:
“The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following: (1) The age and sex of the child. (2) The wishes of the child's parent or parents. (3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age. (4) The interaction and interrelationship of the child with: (A) the child's parent or parents; (B) the child's sibling; and (C) any other person who may significantly affect the child's best interests. (5) The child's adjustment to the child's: (A) home; (B) school; and (C) community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent. (8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter. (9) A designation in a power of attorney of: (A) the child's parent; or (B) a person found to be a de facto custodian of the child.” Ind.Code 31-17-2-8.
Additionally, the court can consider any other relevant change in the child’s condition, and it can be a basis to modify physical custody from the custodial parent to the non-custodial parent if it evidences a substantial change in circumstances and it is in the children’s best interests to modify physical custody from the custodial parent to the custodial parent. Ind.Code 31-17-2-21. The court is not limited to just considering the factors in this list. It can consider any relevant evidence that there has been a substantial change in circumstances, and it is in the children’s best interests to modify custody. Ind.Code 31-17-2-21. Often a non-custodial parent “knows” there has been a substantial change but is not able to sort out what has occurred. This is where working with skilled domestic counsel is invaluable. Most seasoned counsel can zero in on the dynamic with input from the non-custodial parent.
Ordinarily, a positive change in the life of the non-custodial parent and his or her relationship with the children is not sufficient to modify physical custody to the non-custodial parent. This is because it is hard to connect this with a substantial change in circumstance and it is in the children’s best interest to modify custody from the custodial parent to the non-custodial parent. Ind.Code 31-17-2-21. Modifications of physical custody from the custodial parent to the non-custodial parent are typically based upon what the custodial parent is not doing to meet the needs of the children. Most attorneys have litigated this case, but the non-custodial parent’s positive changes in his or her life have little to do with a substantial change in circumstance. However, these positive changes may lead to the court increasing the non-custodial parent’s parenting time. The court can do this so long as it is in the children’s best interests.
In Indiana, there are several statutes that address a parent’s military deployment. Once a parent has deployment orders, he or she must file a petition to address custody. The court has the discretion to leave the children with the spouse of the custodial parent who is deploying but is not required to do so. The statutory process the deploying parent must follow is set forth, in full, as follows:
“(a)Upon a motion of a parent who has received military deployment orders, the court may delegate the parent's parenting time, or a part of the parent's parenting time, during the time the parent is deployed to a person who has a close and substantial relationship with the parent's child if the court finds that delegating the parent's parenting time is in the best interests of the child. (b) If a court delegates parenting time under subsection (a), the order delegating parenting time automatically terminates after the parent returns from deployment. (c) A court may terminate an order delegating parenting time if the court determines that the delegated parenting time is no longer in the best interests of the child.” Ind.Code 31-17-2-21.
In many of Indiana’s ninety-two (92) counties, courts sometimes take several weeks to set a hearing date. However, by statute, the court the notice is filed in (the divorce or paternity court) sets the matter for an expedited hearing under the following statute:
“(a) Upon a motion of a parent who has received military temporary duty, deployment, or mobilization orders, the court shall hold an expedited hearing to determine or modify the custody of a child or parenting time with a child if the military duties of the parent have a material effect on the parent's ability to appear in person at a regularly scheduled hearing concerning custody or parenting time. (b) Upon a motion of a parent who has received military temporary duty, deployment, or mobilization orders, the court shall, with reasonable notice, allow the parent to present testimony and evidence by: (1) telephone; (2) video teleconference; (3) Internet; or (4) other electronic means approved by the court; in a custody or parenting time proceeding if the military duties of the parent have a material effect on the parent's ability to appear in person at a regularly scheduled hearing concerning custody or parenting time.” Ind.Code 31-17-21.1
While a custodial parent who receives order to deploy may be concerned that this will impact his or her custody position on return, it does not, and custody automatically returns to the deployed parent upon return under the following statutory scheme:
“(a)A court may not consider a parent's absence or relocation due to active duty service as a factor in determining custody or permanently modifying a child custody order. (b) If a court temporarily modifies a custody order due to a parent's active duty service, the order temporarily modifying the custody order terminates automatically not later than ten (10) days after the date the parent notifies the temporary custodian in writing that the parent has returned from active duty service. This subsection does not prevent a court from modifying a child custody order as provided under this article after a parent returns from active duty service.” Ind.Code 31-17-2-21.3
In the final analysis, Indiana has a comprehensive scheme to address custodial parents who are in the military and deployed. These statutes protect their custodial rights.
When a custodial parent moves, it may be the case he or she believes a change in physical custody is in the children’s best interests. If that is the case, there is unlikely to be relocation litigation. However, simply allowing the children to move into the former non-custodial parent’s home without taking the proper legal action is a mistake. The proper way to handle the same is to have the parties’ attorneys draw up an agreed entry and file it with the court, addressing the change in physical custody, legal custody, and if necessary, parenting time and child support. 3
The impact on noncustodial parents with a move of any distance can be significant as it relates to parenting time. Just a move of one hour away by the custodial parent will make mid-week parenting time impossible. Such a move may or may not be in the children’s best interests. Where the parties are not going to litigate a relocation, they should work with their attorneys to reach an agreement the protects the children’s best interests. Parties can get very creative if they are not in an adversarial role. The Indiana Parent Time Guidelines have provisions where parenting is at a distance that may be referenced as a place to start. Also, technology such as Facetime and Zoom can help maintain the non-custodial parent’s relationship with the children with a move of any distance.
A custodial parent cannot up and relocate with the children. Due process is such that the relocating parent must provide the non-relocating parent with notice of an intent to relocate. The non-relocating parent can object and seek a modification of physical custody. The notice provisions and whether the court will consider modification of custody are set forth by statute, as follows:
“(a) Except as provided in subsection (b), a relocating individual must file a notice of the intent to move with the clerk of the court that: (1) issued the custody order or parenting time order; or (2) if subdivision (1) does not apply, has jurisdiction over the legal proceedings concerning the custody of or parenting time with a child. (b) A relocating individual is not required to file a notice of intent to move with the clerk of the court if: (1) the relocation has been addressed by a prior court order, including a court order relieving the relocating individual of the requirement to file a notice; or (2) the relocation will: (A) result in a decrease in the distance between the relocating individual's residence and the nonrelocating individual's residence; or (B) result in an increase of not more than twenty (20) miles in the distance between the relocating individual's residence and the nonrelocating individual's residence; and allow the child to remain enrolled in the child's current school. (c) Upon motion of a party, the court shall set the matter for a hearing to allow or restrain the relocation of a child and to review and modify, if appropriate, a custody order, parenting time order, grandparent visitation order, or child support order. The court's authority to modify a custody order, parenting time order, grandparent visitation order, or child support order is not affected by the fact that a relocating individual is exempt from the requirement to file a notice of relocation by subsection (b). The court shall take into account the following in determining whether to modify a custody order, parenting time order, grandparent visitation order, or child support order: (1) The distance involved in the proposed change of residence. (2) The hardship and expense involved for the nonrelocating individual to exercise parenting time or grandparent visitation. (3) The feasibility of preserving the relationship between the nonrelocating individual and the child through suitable parenting time and grandparent visitation arrangements, including consideration of the financial circumstances of the parties. (4) Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a nonrelocating individual's contact with the child. (5) The reasons provided by the: (A) relocating individual for seeking relocation and (B) nonrelocating parent for opposing the relocation of the child. (6) Other factors affecting the best interest of the child. (d) A court may order the relocating individual and the nonrelocating individual to participate in mediation or another alternative dispute resolution process before a hearing under this section: (1) on its own motion; or (2) upon the motion of any party. (e) If a relocation occurs, all existing orders for custody, parenting time, grandparent visitation, and child support remain in effect until modified by the court.(f) The court may award reasonable attorney's fees for a motion filed under this section in accordance with IC 31-15-10 and IC 34-52-1-1(b).” Ind.Code 31-17-2.2-1
Ultimately, the move must be in the child’s best interests. If the non-custodial parent does not believe the move is in the children’s best interests, he or she can object under controlling relocation statute and seek a modification of custody. With such an objection, it places a burden on the moving parent to show the relocation is made in good faith and for a legitimate reason, the key statute being set forth in full as follows:
“(a) Except as provided in subsection (b), a nonrelocating parent shall file a response not more than twenty (20) days after the day the nonrelocating parent is served notice from the relocating individual under section 3 of this chapter. The nonrelocating parent's response must include one (1) of the following: (1) A statement that the nonrelocating parent does not: (A) object to the relocation of the child; and (B) request the modification of any custody, parenting time, grandparent visitation, or child support order. (2) The following: (A) A statement that the nonrelocating parent does not object to the relocation of the child. (B) A motion requesting the modification of a custody, parenting time, grandparent visitation, or child support order as a result of the relocation. (C) A request for a hearing on the motion filed under clause (B). (3) The following: (A) A statement that the nonrelocating parent objects to the relocation of the child. (B) A motion requesting: (i) a temporary or permanent order to prevent the relocation of the child; and (ii) the modification of a custody, parenting time, grandparent visitation, or child support order as a result of the relocation. (C) A request for a hearing on the motion filed under clause (B). (b) A nonrelocating parent is not required to file a response under subsection (a) if the parties have executed and filed with the court a written agreement resolving all issues related to custody, parenting time, grandparent visitation, and child support resulting from the relocation of the child. The agreement must include a child support worksheet to be signed by the parties and attached to the agreement, if the agreement results in a modification of support. (c) A motion filed under subsection (a)(2) or (a)(3) must state whether the relocating individual and the nonrelocating parent have participated in mediation or another alternate dispute resolution process regarding the relocation of the child. (d) On the request of either party, the court shall hold a full evidentiary hearing to allow or restrain the relocation of the child and to review and modify, if appropriate, a custody order, parenting time order, grandparent visitation order, or child support order. (e) The relocating individual has the burden of proof that the proposed relocation is made in good faith and for a legitimate reason. (f) If the relocating individual meets the burden of proof under subsection (e), the burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child. (g) If the nonrelocating parent fails to file a response under subsection (a), the relocating individual may relocate to the new residence.” Ind. Code 31-17-2.2-5
Ultimately, if a court hears the evidence and finds the relocation of the child will have a negative impact on the child, it is likely to deny the relocation. This means the child cannot move with the relocating parent. The court cannot prevent a custodial parent from relocating. Baxendale v. Raich, 878 N.E.2d 1252 (Ind.2008). Contrariwise, if the evidence before the court is that the relocation will have a positive impact on the child, it is likely to approve the relocation of the child with the custodial parent. This is a very complex analysis that balances the parents’ rights and those of the children. The entire relocation statutory scheme should be explored in every relocation case. Skilled counsel can offer many legal options to advance relocation or object to same, such as a relocation evaluation by a clinical psychologist to investigate and report to the court if he or she believes the relocation is in the children’s best interests.