COA affirms denial of mother’s request to relocate to Utah

IL file photo

A mother who appealed the denial of her requests to relocate to Utah with her child has failed to convince the Court of Appeals of Indiana that the trial court erred in its custody determinations.

Jessica Littrell and Caleb Pilkington welcomed their daughter in April 2020.

In 2021, they bought a house with help from Pilkington’s grandparents. They separated a few months later but continued living together.

But by the end of October 2021, Littrell asked Pilkington to move out while she and the child stayed living in the marital residence. Pilkington moved into his grandmother’s house, where he had his own room plus a connected room for the child.

He asked to keep the child overnight, but Littrell said no.

That December, Littrell petitioned for dissolution.

At a provisional hearing, she testified that she was the child’s primary caretaker and that Pilkington only became interested in spending time with the child after the petition was filed. She said they agreed on a schedule for him to see the child throughout the week and on weekends.

Also, Littrell said she had no intention of relocating to Utah, which was her home state.

While the petition was pending, Littrell and the child visited Utah several times. Then, a few months after the initial provisional hearing, she filed a notice of intent to relocate with the child to Utah.

Pilkington objected, but Littrell said her support system in Indiana — Pilkington’s family — no longer existed. The Hamilton Superior Court denied her request.

The parties then continued with the provisional hearing, where the court ordered Pilkington to have a midweek overnight with the child in addition to the parenting time he had been exercising. Again, Littrell was the only person able to testify in the allotted time.

Before the next hearing, Littrell filed a second notice of intent to relocate with the child to Utah, where she had accepted a job.

Pilkington again objected and was able to testify for the first time in the proceedings. He told the court that the relocation would hurt his relationship with his daughter, and he asked for joint legal custody and a split parenting time schedule.

Shortly after the hearing, the trial court dissolved the parties’ marriage, leaving all property and child issues to be decided later.

A few months later, the trial court denied Littrell’s request to relocate and ordered the parties to share joint legal custody with equal parenting time.

Littrell appealed, first questioning whether a magistrate judge, who had presided over the proceedings, had authority to sign the final order.

The appellate court determined the magistrate did have that authority.

“The current law regarding the authority of magistrates is found in Section 33- 23-5-8.5,” Judge Dana Kenworthy wrote. “Pursuant to that Section — with one limited exception not applicable here — the magistrate had ‘the same powers as a judge’ on February 16, 2023, when the final order was issued.”

Also, in a footnote, the COA added that when Pilkington asked for the case to be set on the regular judge’s calendar, Littrell objected.

Next, the appellate court addressed the issue of whether the trial court erred in denying Littrell’s motion to relocate with her child.

The COA initially determined the trial court erred in concluding Littrell’s proposed relocation was not made in good faith and for a legitimate reason.

However, “Mother’s actions and testimony show at best a reluctance to acknowledge Father is also Child’s parent and equally able and entitled to make decisions for her, even if they are not the decisions Mother would make,” Kenworthy wrote.” And as the trial court pointed out, Mother testified four times that she believed Child’s relationship with maternal grandparents was more important than Child’s relationship with Father.

“… Affording the trial court the considerable deference due in family law matters, we cannot say the trial court clearly erred in denying Mother’s request to relocate with child,” she continued. “The trial court’s best interest determination was well supported by the court’s findings and the evidence presented below.”

The last issue on appeal was whether the trial court erred in awarding the parties joint legal custody of their child.

Finding no error, Kenworthy wrote, “The trial court’s order shows it analyzed each factor relevant to a joint custody determination and determined joint legal custody was appropriate and in Child’s best interests. Evidence in the record supports the court’s findings.”

Chief Judge Robert Altice and Judge Leanna Weissmann concurred in Jessica Pilkington v. Caleb Pilkington, 23A-DC-575.