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ATTORNEY FOR APPELLANT B. Scott Skillman Terre Haute, Indiana

ATTORNEY FOR APPELLEE Thomas E. Rucinski Hammond, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 64S05-0709-CV-372 VALERIE RAICH BAXENDALE,

FILED
Jan 15 2008, 8:45 am
of the supreme court, court of appeals and tax court

CLERK

Appellant (Petitioner below), v. SAMUEL RAICH, III, Appellee (Respondent below). _________________________________ Appeal from the Porter Superior Court, No. 64D02-9712-DR-2527 The Honorable Robert P. Kennedy, Special Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 64A05-0610-CV-624 _________________________________ January 15, 2008 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, ___ N.E.2d ___ (Ind. Sept. 25, 2007).
1

Although the trial court refers to "residential custody," the statutes use the term "physical custody." For the sake of conformity to the statutes, we will use the latter term.

2

Valerie also argues that the trial court erred by failing to enter findings of fact or conclusions of law supporting its September 1, 2006, order. We do not address this argument under the doctrine of invited error. See Jolly v. Modisett, 257 Ind. 426, 429, 275 N.E.2d 780, 782 (Ind. 1971). Valerie and Sam advised the trial court that they did not believe findings and conclusions were necessary.

2

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

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