Baxendale v. Raich

• Decision Date: 15 January 2008
• Docket Number: No. 64S05-0709-CV-372.,64S05-0709-CV-372.
• Parties: Valerie Raich BAXENDALE, Appellant (Petitioner below), v. Samuel RAICH, III, Appellee (Respondent below).
• Court: Indiana Supreme Court

878 N.E.2d 1252

Valerie Raich BAXENDALE, Appellant (Petitioner below), v. Samuel RAICH, III, Appellee (Respondent below).

No. 64S05-0709-CV-372.

Supreme Court of Indiana.

January 15, 2008.

B. Scott Skillman, Terre Haute, IN, Attorney for Appellant.

Thomas E. Rucinski, Hammond, IN, Attorney for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 64A05-0610-CV-624.

BOEHM, Justice.

In 2006 the General Assembly replaced the single section governing child custody in the event of a relocation with a new chapter 2.2. We hold that under new chapter 2.2 the trial court may, but is not required to, order a change in custody upon relocation. In this case the trial court's balancing of relevant considerations was not clearly erroneous.

Facts and Procedural History

Valerie Baxendale and Sam Raich divorced in 2000. They were granted joint legal custody of their two children, and Valerie was granted physical custody of both. The older child is now a college student, and his custody is not at issue.

After the divorce, Valerie, Sam, and the younger child, A.R., continued to live in Valparaiso, Indiana, which is in the greater Chicago metropolitan area. In 2001, Valerie graduated from law school and began employment in Chicago, but her position was eliminated fourteen months later. After a year seeking other legal employment in Illinois, Valerie expanded her search and received a job offer in Minneapolis, Minnesota.

On December 6, 2005, after accepting the position in Minneapolis, Valerie filed a Notice of Intent to Relocate with A.R., and Sam responded with a Petition for Modification of Custody. The parties apparently agreed that pending final resolution of custody, A.R., then eleven years old, would remain in Valparaiso with Sam. On July 28, 2006, Valerie moved for an emergency hearing to resolve the relocation issue before the beginning of the 2006 school year. The trial court held a hearing on August 14, 2006, and heard testimony from Valerie, Sam, and Margaret Mary Leitelt, an administrator at A.R.'s private school in Valparaiso. The trial court also interviewed A.R. in camera. The interview was not recorded or attended by counsel, and neither party requested to attend or record the interview.

On September 1, 2006, the trial court entered an order: (1) denying Valerie's request to relocate A.R.; (2) continuing joint legal custody of A.R.; and (3) providing that Sam would be the physical custodial parent if Valerie continued to reside in Minnesota, but if Valerie "returns to Indiana she will be the residential custodial parent."¹

Valerie appealed this order, arguing that: (1) the trial court abused its discretion by modifying physical custody; (2) the trial court abused its discretion by excluding unspecified evidence claimed to bear on Sam's use of drugs and alcohol; and (3) the trial court's order violated her federal constitutional right to travel.² The Court of Appeals found the first issue dispositive and reversed the trial court. Baxendale v. Raich, 866 N.E.2d 333, 335 (Ind.Ct.App. 2007). We granted transfer. Baxendale v. Raich, 878 N.E.2d 212 (Ind. Sept. 25, 2007).

I. The Modification Order

Custody modification is addressed in the general provisions governing child custody orders. In 1985 a section was added to the custody chapter specifically dealing with relocation, and in 2006 a new chapter addressing relocation replaced it. The interplay of these provisions presents an issue of first impression.

A. Modification and Relocation Statutes

In general, an initial child custody order is determined "in accordance with the best interests of the child." Ind.Code § 31-17-2-8 (2004) ("Section 8"). The court is to "consider all relevant factors" in determining the child's best interests, including a nonexclusive list of factors, one of which is the wishes of the child. Id. The court is authorized to interview the child in camera, either with or without counsel present. Id. § 31-17-2-9. If counsel is present, a record may be made of the interview. Id.

The general provision governing custody modification is found in section 31-17-2-21 ("Section 21"). Modifications are permitted only if the modification is in the best interests of the child and there has been "a substantial change" in one or more of the factors identified in Section 8 as considerations in the initial custody determination. Id. § 31-17-2-21(a). These include the wishes of the child and the interrelationship of the child with parents, siblings, and others "who may significantly affect the child's best interests." Id. § 31-17-2-8.

Before July 1, 2006, changes in custody upon relocation were governed by section 31-17-2-23, which became effective in 1985 and was the first provision specifically addressing relocation-based modifications.³ This section required a custodial parent to provide the noncustodial parent with a notice of intent to move if the custodial parent intended to move to a residence not specified in the custody order that was either outside Indiana or at least 100 miles from the custodial parent's county of residence. Either party could then request the court to review and modify the custody order, "if appropriate." In determining whether to modify a custody order, the trial court was required to consider the distance involved in the proposed change of residence and the hardship and expense involved for the noncustodial parent to exercise parenting time rights. Under this original relocation section, "[a] custodial parent's relocation, alone, [would] not support a modification of custody; rather, it is the effect of the move upon the child that renders a relocation substantial or inconsequential — i.e., against or in line with the child's best interests — when determining whether to change custody." Green v. Green, 843 N.E.2d 23, 27 (Ind.Ct.App. 2006) (citing Lamb v. Wenning, 600 N.E.2d 96, 99 (Ind.1992)). As Lamb pointed out, a relocation may or may not involve a substantial change affecting the child's best interests, depending on the child's age, interrelationship with others, and degree of engagement in social, educational, and recreational opportunities. 600 N.E.2d at 99.

On July 1, 2006, shortly before the hearing in this case, an entire new chapter 2.2 governing relocation in child custody cases was added to the "Custody and Visitation Rights" article of the Family Law title in the Indiana Code.⁴ I.C. §§ 31-17-2.2-1 to -6 (West Supp.2007). The new chapter uses a set of defined terms. "Relocation" is "a change in the primary residence of an individual for a period of at least sixty (60) days," and no longer requires a move of 100 miles or out of state. Id. § 31-9-2-107.7. A "relocating individual" is someone who "has or is seeking: (1) custody of a child; or (2) parenting time with a child; and intends to move the individual's principal residence." Id. § 31-9-2-107.5. A "nonrelocating parent" is someone "who has, or is seeking: (1) custody of the child; or (2) parenting time with the child; and does not intend to move the individual's principal residence." Id. § 31-9-2-84.7. Upon motion of either parent, the court must hold a hearing to review and modify custody "if appropriate."⁵ Id. § 31-17-2.2-1(b). In determining whether to modify a custody order, the court is directed to consider several additional factors that are set out in section 31-17-2.2-1(b) and are specific to relocation.⁶ In general, the court must consider the financial impact of relocation on the affected parties and the motivation for the relocation in addition to the effects on the child, parents, and others identified in Section 8 as relevant to every change of custody.

The new relocation chapter raises the question of when it is "appropriate" for the trial court to modify a custody order in the relocation setting. The Court of Appeals concluded that the general change of custody provision found in Section 21 applies both to general custody modifications and to relocation-driven modifications, with the relocation chapter providing "additional guidance." Baxendale, 866 N.E.2d at 337. We agree with the Court of Appeals that relocation does not require modification of a custody order.

For several reasons, we do not agree with the Court of Appeals that Section 21 requires that a change in one of the original Section 8 factors be found before a change may be ordered after a relocation. First, chapter 2.2 is a self-contained chapter and does not by its terms refer to the general change of custody provisions. Second, the relocation chapter introduces some new factors that are now required to be balanced, but also expressly requires consideration of "other the factors affecting the best interest of the child." I.C. § 31-17-2.2-1(b)(6). The general custody determination required under Section 8 is to find "the best interests of the child" by examining the factors listed in that section. As a result, chapter 2.2 incorporates all of the Section 8 considerations, but adds some new ones. Because consideration of the new factors might at least theoretically change this balance, the current statutory framework does not necessarily require a substantial change in one of the original Section 8 factors. Finally, section 31-17-2.2-2(b) of the relocation chapter expressly permits the court to consider a proposed relocation of a child "as a factor in determining whether to modify a custody order." Because section 31-17-2.2-1(b) already contains a list of relocation-oriented factors for the court to consider in making its custody determination, section 31-17-2.2-2(b) seems to authorize a court to entertain a custody modification in the event of a significant proposed relocation without regard to any change in the Section 8 factors. In most cases the need for a change in a Section 8 factor is likely to be academic because a move across the street is unlikely to trigger opposition, and a move of any distance will likely alter one of the Section 8 factor...