Relocating Without Filing Statutory NOI: Promptly Initiate Custody Mod?

Case: Dustin Lee Jarrell v. Billie Jo Jarrell 
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In a procedurally subtle custody modification case, the Court of Appeals held that the trial court properly applied the traditional “best interests” custody modification factors — rather than the factors promulgated under the relocation statute — even though the modification matter substantially arose from the Mother’s relocation. In effect, the Court held that if a parent fails to litigate relocation timely, then a subsequent litigation custody modification does not apply the relocation statute factors, even if the parent’s relocation plays heavily in the custody determination.

NOTE: This case underscores that, when one parent relocates without filing a statutory notice of intent to relocate, the other parent should analyze whether it makes sense to promptly initiate a custody modification based upon the other parent’s relocation.

Father and Mother married in 2003, and resided in Vincennes. In 2008, they had their only Child. In 2010, Mother filed for divorce, and the resulting agreed-upon Decree provided for joint legal custody, and equal parenting time with an alternating seven-day schedule.

In 2011, Mother quit her nursing job in Vincennes to move to Carterville, Illinois – an approximate three-hour drive from Vincennes — to be with her new fiancé. Despite the move, for nearly two years the parties continued their alternating week parenting time schedule set forth in the decree, meeting halfway each week to exchange Child. Importantly, at the time of Mother’s relocation, Mother did not file a notice of intent to relocate, nor did Father file any objection to Mother’s relocation despite being well aware of it.

In 2013, as Child was nearing the start of kindergarten, Father filed a petition to modify, noting Mother’s relocation and arguing that the alternating weeks parenting time schedule would be impractical once Child started school. After a hearing that included an in camera interview with Child, the trial court modified custody, granting primary physical custody to Mother, and giving Father parenting time of three weekends per month and nearly all of the summer.

Father appealed.

At the heart of Father’s appeal, the factors a trial court should consider when modifying custody in a relocation case are different than in a traditional custody modification. In a traditional custody modification, the focus is on the “best interests factors”; the relocation statute adds to the best interests of the child various “relocation factors,” such as the relocating parent’s reasons for the relocation, the hardship relocation would create, etc. (The 2008 Baxendale case discusses the difference between the statutes in greater detail.)

Here, Mother provided Father with written notice of her intended relocation, but never filed a formal notice of intent to relocate with the divorce court. At the crux of this case is whether Father’s obligation to file an objection to the relocation was triggered since Father was well aware of the relocation, even though Mother never filed a notice of intent. The Court of Appeals resolved the question as follows: “[B]ecause we find that Father acquiesced to Mother’s relocation, the Modification Statute — not the relocation statute — supplies the factors that the trial court should have considered in determining whether to modify custody.”

Reviewing the merits of the custody determination, the Court noted that there was detailed evidence presented to support a conclusion that Child’s educational interests were much better served by being with Mother, that Mother and her fiancé provided a good living environment for Child, and that Mother had made better daycare arrangements for Child during Mother’s working hours than Father had for Father’s working hours. As such, it was within the trial court’s discretion to award custody to Mother.

To view the text of this opinion in its entirety, click here: Dustin Lee Jarrell v. Billie Jo Jarrell


The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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