The Impact of Insufficient Notice On Relocation

On behalf of The Marks Law Firm, L.L.C. posted in Child Custody and Relocation on Friday, June 13, 2014

Relocation situations need not, but often do, create confusion and upheaval in custody plans. If a parent has to relocate because of a job offer or a remarriage (the most common bases for moving away), and the parents had a joint custody arrangement where both parents had significant periods of physical custody, that plan will no longer remain feasible. At this point, a court has to make a difficult decision about allowing the parent to relocate and how to modify the physical custody schedule.

Relocation is governed strictly by statute in Missouri. A parent wanting to relocate must provide notice pursuant to Section 452.377 of the Missouri Revised Statutes. Such notice must be in writing, delivered by certified mail, at least sixty (60) days in advance of the proposed relocation, and contain the address of the proposed new residence, the new phone number, the reason for the proposed relocation, the date of the proposed relocation and a revised schedule of physical custody. The non-relocating parent has thirty (30) days to file a Motion to Prevent Relocation; the failure to file a Motion within the prescribed time will give the other parent an absolute right to relocate. Once a Motion is filed, the relocating parent has fifteen (15) days to file a response to the Motion, and the court will set the matter for a hearing. The court must consider (a) whether the notice complied with the statute and was properly given, (b) whether the proposed relocation was made in good faith, and (c) whether the proposed relocation would be in the best interests of the child.

More recently, Missouri courts have been scrutinizing the notice given by a party for “strict compliance,” so that if any of the required information is not addressed or provided, the relocating parent could not relocate.

Two appellate cases decided this week shed some interesting, and seemingly conflicting, light on the application of the relocation statute.

In Mehler v. Martin, mother had sole physical custody and father had visitation rights. Mother subsequently remarried and planned to move from Ste. Genevieve to Eureka, roughly an hour drive. Mother claimed father orally agreed to the relocation. Mother failed to provide the written statutory notice. After mother relocated, father changed his mind and filed a motion to modify where he would become sole physical custodian. Mother filed a cross-motion to modify, entering her new visitation schedule based on the relocation. The trial court ruled for mother and father appealed, alleging the court erred in modifying because mother had no right to relocate. Because mother never gave written notice, the father could not follow the statute and timely object to the relocation. So, father chose to file a motion to modify and, under the relocation statute, a parent who relocates without the right to do so may establish grounds for a modification of custody. The Eastern District found mother failed to comply with the notice provision but, rather than proceed to whether the trial court properly modified the original judgment, it first considered whether mother met the good faith and best interests tests for relocation. Presumably, the Eastern District has now held that for relocation without permission to qualify as a basis for modification the court must consider whether, absent the notice, the relocation would have been approved. This point is not entirely clear, but seems to chart new ground. The court found no bad faith – mother needed to reside with her new husband at his new employment in Eureka, and the home in Ste. Genevieve had been foreclosed. As to best interests, the trial court did make extensive findings on all statutory factors, with the most important factor the likelihood that mother rather than father would assure continued frequent and meaningful contact between the child and both parents.

In Fleming v Fleming, the parties shared joint physical custody of their child. Mother remarried and gave oral notice of her intent to relocate to Hawaii with her new husband. Father objected by motion, claiming deficient notice, and the court agreed with father. After this ruling, mother provided statutory written notice, but she failed to include the date of proposed relocation and a revised schedule of custody. Two months later, mother took the child and relocated to Hawaii. Both parties filed motions to modify. The trial court gave father sole physical custody. On appeal, mother first argued father failed to timely file a motion to prevent relocation, so she had the absolute right to relocate. However, the Western District found that the failure to include the date of relocation and a revised custody schedule made her notice deficient, relieving father of any duty to object.

Mehler and Fleming both involve deficient notice cases in the context of motions to modify rather than motions to prevent relocation. While the Western District stopped consideration of relocation issues after finding deficient notice, the Eastern District considered the merits of the relocation – a potential conflict between the districts on how to handle motions to modify that arise out of deficient relocation notices. Only further cases and time will tell what to make of this apparent split in approach.

From a practical standpoint, the fathers in both cases could have chosen to file motions to prevent relocation as soon as they had actual knowledge and by so doing allowed the trial court to find insufficient compliance and a denial of the relocation. Following that path would have allowed for prompt return of the children.

So, to best protect your respective interests in relocation, if you plan to relocate, strictly comply with the elements for notice. And if you oppose relocation, file a motion to prevent as soon as you have actual knowledge of a proposed relocation.

If you have questions about relocation, contact our St. Louis family law attorneys – we can help.