MAXWELL v. MAXWELL (2025)

MEMORANDUM DECISION

Case Summary

[1] Kelly Maxwell (“Father”) filed a notice of intent to relocate from Indianapolis to Lincoln Park, Michigan, with his two daughters, ten-year-old Ke.M., and seven-year-old Ky.M. (collectively, “Children”). Katheryn Maxwell (“Mother”) objected, submitted her own notice of intent to relocate, and requested a hearing on the matter. After the hearing, the trial court modified the parties’ joint custody arrangement and granted Father physical custody of Children. Mother appeals and raises three issues for review, which we consolidate and restate as whether the trial court abused its discretion when it granted physical custody to Father. We affirm.

Facts and Procedural History

[2] Father and Mother married in 2015. The couple initially lived in Michigan. Ke.M. was born in Michigan in April 2015. At some point before Ky.M. was born in November 2017, the family relocated to Indianapolis. In 2023, Father petitioned to dissolve the marriage. The trial court approved the couple's mediated settlement agreement and issued a decree of dissolution in March 2024. Under the settlement agreement, Father and Mother agreed to joint legal and physical custody of Children. Both parties continued to reside in Indianapolis, approximately fifteen minutes from one another. In the event of relocation by either party, the settlement agreement stated the relocating parent “must provide notice pursuant to the Indiana Relocation Statute.” Appellant's App. Vol. 2 at 15.

[3] On January 22, 2025, Father filed a notice of intent to relocate to Lincoln Park, Michigan, close to Detroit. In the filing, Father explained his motivation for the move:

I am requesting to relocate with my daughters to Michigan to provide them with a safer and more stable environment supported by extended family, better schools, and essential resources like speech therapy and counseling. The move will enhance their development and well-being, and I am financially capable of supporting them independently.

Id. at 30. On February 9, Mother filed her objection to Father's notice of intent to relocate. On the same day, Mother filed her own notice of intent to relocate:

This move offers a stronger support system for me and the girls as they get older. I have accepted a management position as the Wellness Director with the YMCA of Hammond, IN. The position offers growth opportunities and a pay increase. Housing will be only 5-minutes away in a family-home owned by my mother. Upon acceptance, the girls would attend a private Christian school, where [Ky.M.’s Individualized Education Plan] can continue and the girls can continue mental health therapy.

Id. at 34. Mother moved to Hammond on March 9.¹

[4] In their respective motions, both parties asked the trial court to modify the custody agreement. The trial court held a relocation hearing on March 21. Father and Mother testified. Father articulated his wish to be closer to family and have a larger support network. He explained Children were familiar with Lincoln Park, having visited family in the area several times before. Father and Mother were raised in the greater Detroit area, so Children had extended family on both sides there. Father submitted proof of purchase of a house in Lincoln Park, fifteen minutes or so from his hometown. He clarified his fully remote job would allow him to spend more time with Children and offer additional compensation opportunities. He explained his wife—who was a stay-at-home mom—would also help with the raising of Children. Children would be able to have a relationship with their half-sibling in Father's home. Because the school year was almost over, Children would complete the year at a public elementary school, but Father intended to enroll Children in a private Christian institution comparable to the one they attended in Indianapolis. Father acknowledged Mother was “a good mom” but believed the existing custody agreement was no longer feasible. Tr. Vol. 2 at 28.

[5] Similarly, Mother explained the reasons for her move to Hammond, which was approximately a four-hour drive from Father's proposed new residence. She explained her new job offered higher pay and a flexible schedule. She would have the freedom to schedule her work to coincide with school hours. The job came with perks such as reduced or free childcare at her work location. Mother stated she would live in her mom's home and eventually purchase the property.² According to Mother, relocation would bring Children closer to extended family in the greater Chicago area. At the time of the hearing, Mother was in the process of enrolling Children in a private Christian institution she hoped they would attend after completing the year in public school. Mother suggested Children were more familiar with Hammond than with Lincoln Park. Although Mother acknowledged she and Father had a good relationship as co-parents, she admitted the custody agreement was no longer viable. She suggested Father have parenting time as outlined in Indiana's parenting time guidelines.

[6] On April 1, 2025, the trial court issued its order awarding physical custody of Children to Father. The court “carefully considered the statutory factors and the best interests of the children[.]” Appellant's App. Vol. 2 at 2. The trial court found, in part:

10. The difference in the parties [sic] situations is marginal. Unfortunately, continuing joint legal and physical custody is not logically possible.

11. Mother has a structured long term plan for the children in Hammond and the support of extended family. Mother plans to live with Maternal Grandmother.

12. Father has a long term plan for the children in Detroit and the support of extended family. Father plans to live with his wife and an additional sibling.

13. Parties have attempted to reach a compromise as both understand and respect the role of the other parent in their children's [lives].

14. Both parents are providing, with the relocation, an improved lifestyle and support network for the children.

15. Father represented his new employment will allow him to work from home, has a stay-at-home wife and the children's younger sibling, along with paternal and maternal family members in the surrounding area, creating a slightly larger support network for the children, as a result, the Court Orders the physical custody of the children shall be with Father.

Id. at 3–4.

The trial court did not abuse its discretion when it granted physical custody of Children to Father.

[7] We “review custody modifications for abuse of discretion, with a ‘preference for granting latitude and deference to our trial judges in family law matters.’ ” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). “We will set aside judgments in custody modifications only when they are clearly erroneous, and we will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment.” Rogers v. Rogers, 876 N.E.2d 1121, 1126 (Ind. Ct. App. 2007), trans. denied.

[8] The trial court entered findings of fact and conclusions thereon to support its judgment. We will “not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A). In other words, we will not reweigh the evidence or judge the credibility of the witness for ourselves, and we will view the evidence most favorably to the judgment. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). Where, as here, the trial court enters findings sua sponte, we review issues covered by the findings by determining first whether the evidence supports the findings and, if so, whether the findings support the judgment. Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). Findings are clearly erroneous if the record contains no facts or inferences supporting them. State v. Int'l Bus. Machs. Corp., 51 N.E.3d 150, 158 (Ind. 2016). A judgment is clearly erroneous if it relies on an incorrect legal standard. Id. We apply a general judgment standard to issues upon which the trial court made no findings. Steele-Giri, 51 N.E.3d at 123–24; see T.R. 52(D). We will affirm a general judgment entered with findings if it can be sustained on any legal theory supported by the evidence. Miller v. Lucas, 264 N.E.3d 651, 655 (Ind. Ct. App. 2025) (quoting Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)).

Statutory requirements

[9] In some instances, such as those in the present case, a parent intending to relocate “must file a notice” of that intention. Ind. Code § 31-17-2.2-1(a) (2020); see also I.C. § 31-17-2.2-5 (2019) (content of notice). Following the notice of intent to relocate, the nonrelocating parent may object by requesting modification of custody and an order to prevent the relocation of the child. I.C. § 31-17-2.2-5(a)(3). In the event of an objection, “the burden is on the relocating parent to show that the proposed relocation is made in good faith and for a legitimate reason.” Myers v. Myers, 13 N.E.3d 478, 484 (Ind. Ct. App. 2014) (emphasis added); see also I.C. § 31-17-2.2-5(e). “If the relocating parent meets that burden, then the burden shifts to the nonrelocating parent to show that the proposed relocation is not in the child's best interests.” Myers, 13 N.E.3d at 484; see also I.C. § 31-17-2.2-5(f). Where the nonrelocating parent fails to respond, the relocating parent “may relocate to the new residence.” I.C. § 31-17-2.2-5(g).

[10] Under Indiana Code Section 31-17-2.2-1(c), the trial court “shall take into account the following in determining whether to modify a custody order” because of relocation:

(1) The distance involved in the proposed change of residence.

(2) The hardship and expense involved for the nonrelocating individual to exercise parenting time ․

(3) The feasibility of preserving the relationship between the nonrelocating individual and the child through suitable parenting time ․ 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.

Good faith and legitimate reasons

[11] Mother argues the trial court overlooked “whether the relocations were made in good faith and for a legitimate purpose.” Appellant's Br. at 15. She maintains Father did not show a “good faith and legitimate reason for his relocation” as he chose to move “not based on necessity but out of choice, since he could live anywhere and still do his remote job.” Id. at 16.

[12] “There are no explicit criteria for determining whether a relocation request is made in good faith and for a legitimate reason.” Williams v. Cardona-Feliciano, 245 N.E.3d 626, 635 (Ind. Ct. App. 2024). We have generally required the relocating parent to show an objective basis beyond mere pretext. Id. “It is commonly understood in today's society that individuals move in order to live closer to family members, for financial reasons, and for employment opportunities.” Gold v. Weather, 14 N.E.3d 836, 842 (Ind. Ct. App. 2014), trans. denied.

[13] In his notice of intent to relocate, Father indicated his desire to be closer to extended family. By the time of the relocation hearing, Father had purchased a house in Lincoln Park, approximately fifteen minutes from his hometown. He had extended family in the Detroit area. Father's new remote position allowed for additional compensation and flexibility. Along similar lines, Mother accepted a new position with her current employer in Hammond, where her mom lived. The new role came with a slightly higher salary and various child-care benefits. Mother intended to live in her mom's house and eventually purchase the property. She had extended family in the Chicago area.

[14] Both parents intended to move to be closer to family, acquire property, and take advantage of new employment opportunities. Both parties presented the trial court with similar good faith and legitimate reasons for moving. See Gold, 14 N.E.3d at 842. Nothing in the record suggests either parent lacked an objective basis beyond mere pretext to justify their relocation. See Williams, 245 N.E.3d at 635. Father and Mother recognized each other's capacity to be a good parent for Children. See Tr. Vol. 2 at 10, 28. The trial court found Father and Mother “attempted to reach a compromise as both understand and respect the role of the other parent” in the lives of Children. Appellant's App. Vol. 2 at 3. The trial court found a “marginal” difference in the “situations” of each parent. Id. After “carefully” weighing “the statutory factors,” the court granted physical custody of Children to Father. Id. at 2, 4. Although the trial court did not make an explicit finding regarding the parties’ justifications for relocating, it is clear from its order the court considered their reasons to be in good faith and legitimate.

[15] Mother argues because “Father did not object to [her relocation], Father should not have been able to request a modification of custody based upon her relocation.” Appellant's Br. at 14 (citing I.C. § 31-17-2.2-5(g) (providing that if a nonrelocating parent fails to respond to a notice of relocation, the relocating parent may move)). But the facts of this case do not neatly fit within the relocation statute. Here, there is no “non-relocating” parent. Both parties acknowledged this, and both asked the court to modify custody. Under the facts of this case, where it is clear Father objected to Children's relocation to Hammond because he had already requested modification due to his desire to relocate to Michigan, Father's technical failure to respond to Mother's notice did not entitle her to move with Children. Nor did it relieve the trial court of its obligation to determine what was in Children's best interest, a determination we review below. See Williams, 245 N.E.3d at 635 (explaining the “resolution of a relocation request ultimately turns on a judicial determination regarding the best interests of the children involved”) (citation omitted).

Best interest of Children

[16] Mother next contends the trial court “erred in not thoroughly addressing any of the other factors when determining the best interest of the Children for purposes of a custody modification.” Appellant's Br. at 20. When deciding custody rights of a parent, “the best interests of the child are the primary consideration.” Keen v. Keen, 629 N.E.2d 938, 941 (Ind. Ct. App. 1994). Indiana Code Section 31-17-2.2-1(c)(6) requires trial courts—in determining whether to modify a custody order—to consider “[o]ther factors affecting the best interest of the child.” These factors include, among others, the age and sex of the child; the parents’ wishes; the child's relationship with parents; siblings; and others; and the child's adjustment to home, school, and community. I.C. § 31-17-2-8 (2017); see also D.C. v. J.A.C., 977 N.E.2d 951, 954–57 (Ind. 2012) (applying best interest factors to modification decision because of relocation); see also Lamb v. Wenning, 600 N.E.2d 96, 99 (Ind. 1992) (recognizing a “move far away will significantly impact the relationship between the child and the parent without physical custody”). “When one parent is relocating, it is not necessary for a court to find a substantial change in one of these ‘other factors’ before modifying custody.” D.C., 977 N.E.2d at 954. Unless requested to do so by the parties, the trial court need not make specific findings on each factor. H.H. v. A.A., 3 N.E.3d 30, 36 (Ind. Ct. App. 2014) (citing Baxendale v. Raich, 878 N.E.2d 1252, 1254 n.2 (Ind. 2008)).³

[17] In this case, the trial court found the difference in situations between Father and Mother “marginal.” Appellant's App. Vol. 2 at 3. Both parents intended to relocate so they could provide an extended family network to Children. Father and Mother claimed their new employment would either increase their income or present new opportunities to do so. They both planned to acquire property and intended to have Children finish the school year in public school before enrolling them in a private Christian institution. The trial court found both parents “are providing, with the relocation, an improved lifestyle and support network for the children.” Id. at 4. That said, the court concluded Father's remote work permitted him greater flexibility, as did Father's support from his stay-at-home wife. See id. In Father's home, Children would also have a relationship with their sibling. See id. And “along with paternal and maternal family members” in the immediate area, the court determined Father offered a “slightly larger support network” for Children. Id.

[18] To the extent Mother claims error in the trial court's supposed failure to make findings on all factors, the court need not have done so here. See Emslander v. Baine, 247 N.E.3d 1246, 1250 (Ind. Ct. App. 2024) (clarifying trial courts are not required to make specific findings on all factors but “at a minimum, there must be evidence in the record on each of the factors listed”) (citation omitted). “It is not enough on appeal that the evidence might support some other conclusion; rather, the evidence must positively require the result sought by the appellant.” Hamilton v. Hamilton, 103 N.E.3d 690, 694 (Ind. Ct. App. 2018), trans. denied. The record before us demonstrates the trial court weighed the relevant statutory factors when it modified the settlement agreement because of competing relocations. The record also demonstrates the court accounted for the best interest of Children when it granted Father physical custody. Therefore, the trial court did not abuse its discretion. See In re Paternity of V.D., 226 N.E.3d 816, 827 (Ind. Ct. App. 2024) (noting this Court does not disturb a child custody determination absent an abuse of discretion); see also Keen, 629 N.E.2d at 941 (observing custody conflicts “are left to the trial court to resolve”).

[19] We further note the trial court found parties “both understand and respect the role of the other parent in their children's [lives].” Appellant's App. Vol. 2 at 3. We commend the parties on this point. Father proposed Mother receive more parenting time than the Guidelines provide (which the court adopted), and future custody modification in Mother's favor. The parties agreed to meet at a halfway point between Lincoln Park and Hammond for parenting time exchanges. And, admirably, both parents expressed willingness to offer additional time to the noncustodial parent. The court explicitly allowed for this flexibility, leaving the door open for the parties to “mutually agree to deviate” from the parenting time order entered. Id. at 4. We encourage the parties to be mindful of the fact that transition from shared custody will necessarily be challenging for the Children and to work together to mitigate this transition and maximize Children's time with Mother.⁴

Conclusion

[20] The trial court did not abuse its discretion in granting physical custody of Children to Father.

[21] Affirmed.

[22] I respectfully dissent from the majority's conclusion that the trial court did not abuse its discretion in granting physical custody of Children to Father. I recognize that this modification and relocation have already occurred. I feel compelled to dissent, however, due to the lack of evidence and lack of a determination by the trial court regarding whether relocation was in the Children's best interests.

[23] Here, Father filed a relocation petition, and then Mother also filed a relocation petition. Indiana Code § 31-17-2.2-5(f) requires that the Children's best interests be considered in permitting a relocation. Here, the parties presented scant evidence that the relocation was in the Children's best interests, and the trial court made no such finding regarding whether relocation was in the Children's best interests. Father indicated that family support was the reason for relocation but failed to specify the family members living near him and the interaction the Children would have with the extended family. Father also testified that relocation would provide more support for his growing family—which is in Father's best interests, not the Children's best interests. Similarly, Mother indicated that her relocation was for family support and a better job. The evidence, however, does not indicate whether Mother would have moved had Father not moved or whether these parents both decided to relocate at the same time.

[24] I recognize that the appointment of a guardian ad litem generally is not “mandatory;” rather, such appointment “is a matter entrusted to the trial court's discretion.” In re Paternity of V.M.E., 668 N.E.2d 715, 717 (Ind. Ct. App. 1996). “A court, in a proceeding under IC 31-17-2, IC 31-17-4, this chapter, IC 31-17-7, IC 31-28-5, or IC 31-35-3.5, may appoint a guardian ad litem, a court appointed special advocate, or both, for a child at any time.” Ind. Code § 31-17-6-1. Our Court has recognized “that in narrow circumstances, such as when the children are not adequately represented, an appointment is required.” V.M.E., 668 N.E.2d at 717; see also Ind. Trial Rule 17(C) (“If an infant or incompetent person is not represented, or is not adequately represented, the court shall appoint a guardian ad litem for him.”). I strongly feel that, after hearing the evidence here, the trial court should have appointed a guardian ad litem for several reasons.

[25] First, the parents here were sharing joint physical custody, and the relocations would result in the application of the Parenting Time Guidelines in which distance is a major factor. See Ind. Parenting Time Guideline Section III. Accordingly, one parent's parenting time was going to be significantly reduced. Second, Father was moving to another state, which would most likely deprive Indiana of jurisdiction over this matter. Finally, and most importantly, the parties presented scant evidence of the Children's best interests as required for relocation and for modification of custody.

[26] The first step for the trial court was to determine if Father's relocation was: (1) made in good faith and for a legitimate purpose; and (2) in the best interests of the Children. Ind. Code § 31-17-2.2-5. Then the trial court was required to make the same two-part determination for Mother. The trial court could have decided that neither move was in the best interests of the Children, and accordingly, both relocation petitions could have been denied. This would be a harsh result, but the relocation statute must be followed to ensure the Children's best interests are adequately considered.

[27] It appears the trial court skipped over the best interest determination and proceeded to the modification of custody in contradiction of the relocation statute. I find that the trial court abused its discretion by not making a best interest finding for relocation and by failing to appoint a GAL in this case.

FOOTNOTES

1.   The dissent states, “[t]he evidence, however, does not indicate whether Mother would have moved had Father not moved or whether these parents both decided to relocate at the same time.” slip op. at ¶ 2. Yet, Mother's intention was clear: she completed her move to Hammond and started her new job before the relocation hearing occurred.

2.   During the relocation hearing, Mother suggested her mom would remain in the house, albeit temporarily. See Tr. Vol. 2 at 39 (Mother explaining, “her goal is to actually buy an apartment closer to her job in Illinois”).

3.   To be sure, explicit findings aid our review of a custody decision on appeal. And although findings were not required in this case, a custody order entered after July 1, 2025, must include findings. See I.C. § 31-17-2-8.2(b)(1) (2025) (“A trial court shall include the court's findings of fact and conclusions of law on which the custody order is based.”).

4.   Indiana has developed an application to assist parents, attorneys, and courts in creating a visual calendar grounded in the Indiana Parenting Time Guidelines. Indiana Parenting Time Calendar [https://perma.cc/9DG3-EJWH]. Another possibility for helping parents with the transition, subject to the trial court's discretion, is the appointment of a guardian ad litem to represent and protect the best interests of Children. See generally In re Paternity of E.B.K., 242 N.E.3d 500, 513 (Ind. Ct. App. 2024) (discussing the role of a guardian ad litem); see also I.C. § 31-17-6-1 (2016) (authorizing appointment of guardian ad litem “at any time”).

Kenworthy, Judge.

Bailey, J., concurs. Tavitas, J., dissents with separate opinion.