Question:
I have joint custody with my ex-wife. Our divorce decree states that neither party shall move more than 15 miles apart, but she moved an hour away and across state lines. I still see the kids though.
Now I want to move to another state where my new wife’s family is. But my ex is saying she’ll never let me see my kids again if I move. What can I do? She’s the one who moved out of state first without the court’s permission.
Answer:
I will preface my answer with the fact that I do not practice in the State of Illinois. Therefore, I cannot inform you as to the specific laws of Illinois and am answering your question using an analysis based in Indiana law. Cordell & Cordell does have offices in Illinois and I would encourage you to contact an attorney from our Illinois office.
You have asked what your options are due to your ex-spouse’s relocation, and your desire to relocate. From your question, it appears that your ex-wife is in violation of your settlement agreement by her relocating out of state without the court’s permission. In Indiana, former spouses with minor children are required, pursuant to statute, to file a formal and written notice of their intent to relocate, at least 90 days prior to the intended relocation. The non-relocating spouse then has an opportunity to object to the relocation and have a hearing on the relocation.
In Indiana, the act of relocating, is, in and of itself, a “substantial and continuing change” which can warrant a modification of physical custody or parenting time. Indiana Courts use a two-tiered approach to reviewing a relocation issue.
First the Court will look at if the relocation is for a valid purpose or rather to thwart the non-relocating parent’s relationship with the children.
Next, if the Court finds that the relocation is for a valid purpose, that is, to move to a better job or further a career, the Court will analyze if the relocation is in the best interests of the children. Some factors the court would look at would be the effect the relocation would have on the non-relocating parent’s relationship with the children, and the children’s adjustment to their existing home, school, or community.
You certainly could be within your rights to file a petition for rule to show cause as well as a temporary restraining order on your former-spouse from relocating with your children. In Indiana, you would have a basis for bringing a petition to modify custody.
Finally, I would advise you to seek out competent legal representation, particularly from an attorney that focuses exclusively on domestic litigation, such as the attorneys at Cordell & Cordell.
Jason P. Hopper is an Associate Attorney in the Indianapolis, Indiana, office of Cordell & Cordell where his primary practice is exclusively in the area of domestic relations. Mr. Hopper is licensed in the state of Indiana – All State and Appellate courts, US District Court Northern District Indiana, US District Court Southern District Indiana, US Bankruptcy Court Southern District Indiana.
