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Appeals court orders physical custody of child back to father

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A mother has lost primary physical custody of her daughter after the Indiana Court of Appeals decided on Thursday to reverse and remand a decision that would have taken the daughter out of the custody of her father and instead place her in the primary custody of her mother.

In its decision in the case of Carl Wayne Montgomery v. Patricia Ann Montgomery, 10A01-1511-DR-1910, the Court of Appeals reversed a Clark Circuit Court decision to modify custody of the child, A.M. , and put her in the primary physical custody of her mother, Patricia Ann Montgomery.

The circuit court decision came after the father, Carl Wayne Montgomery, was granted sole legal custody of A.M.  in June 2012 after he and the girl’s mother divorced. Initially, the mother was not granted any parenting time with A.M. because she had previously interfered with the father’s parenting time, but  later agreed to a parenting time schedule that did not alter the father’s sole custody of the child.

The following year, Carl Montgomery filed a restraining order against his ex-wife, who was living in Wisconsin with a boyfriend, Gary Best, who had two prior battery convictions. The father also alleged that the boyfriend had assaulted A.M. The mother repeatedly denied any physical abuse by Best against herself or her daughter.

In April 2014, Patricia Montgomery took a video, without A.M.’s knowledge, of herself, her daughter and Best eating pizza together. The video showed A.M. freely interacting with Best without fear or hesitation and referred to him as “Dad” or “Daddy.” Further, in a conversation with her mother’s attorney, A.M. said that it was her dream to live with her mother and Best.

Patricia Montgomery also testified that her ex-husband was intentionally withholding important information about her daughter’s life, including school and medical information, and in May 2014 she filed a motion to modify custody of A.M. in her favor. The trial began in May 2015, and in October 2015 Patricia Montgomery’s petition to modify custody was granted, giving her legal and physical custody of A.M. and her ex-husband distance-related parenting time.

The court also ordered Carl Montgomery to pay $7,500 in attorney fees his ex-wife said she had incurred during their legal proceedings.

But in its reversal, the Indiana Court of Appeals noted that that trial court gave no indication as to what circumstance had changed under the Indiana Code that would warrant a modification of custody. Although there was evidence that Carl Montgomery had interfered with his ex-wife’s visitation rights, the appellate court wrote that such interference does not always warrant a custody change. Further, the court also wrote that A.M.’s mother had previously interfered with the father’s custody rights, which led to the initial decision to give the father sole custody.

Additionally, the court noted that he did not completely keep his daughter from her mother, and that Patricia Montgomery had never sought to hold her ex-husband in contempt.

Finally, the court wrote that there was no evidence that Carl Montgomery’s interference with Patricia Montgomery’s parenting time had any negative effect on A.M.’s mental or emotional health.

Thus, the court determined that there was insufficient evidence to support the custody modification and, therefore, reversed the decision and remanding for custody be returned to the father.

Additionally, the Court of Appeals also found that the circuit court abused its discretion when it ordered Carl Montgomery to pay his ex-wife’s attorney fees and reversed that decision as well.

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  • You are Not Alone
    LOL this is such a joke. Sounds to me like this mother did not get a fair COA hearing. So much for what is in the best interest of the child. The Judges on this panel must of been a sleep, too busy watching Judge Judy. This is a very corrupt ruling, its so black and white.
  • COA got it WRONG
    I did not do anything wrong, I made every effort to follow the Court Order and my ex did not. He kept our child away from me, spread malicious lies on social media about me, He did everything against the CO and what happens? He wins and I lose? Actually, our child is the victim in all of this. The COA Judges do not know our lives have been like in the past 5 years since fighting my narcissistic and abusive ex. I have done everything that I was supposed to do, leave the abuser, do not have your child grow up with a controlling man who is not a healthy father figure. There are too many mothers, GOOD mothers, who are losing custody to the abuser. Even the Supreme Court Justices, David and Rush agreed the COA did re weigh the evidence and does not understand how the Judges came to their decision of giving back custody to the father. The majority ruled in my case, I want to say thank you to the Justices that at least knew what the COA done and spoken out about it. The other hold outs, you know who you are, that denied me my transfer, I do not know why you didn't see what David and Rush did, I was only one vote away from getting my transfer granted, I guess, corporate business and money are more important than a little child's future who has been a victim of Parent Alienation and I do not know what to tell our child why the Justice System let us down. If/when my ex does decide to allow me to see our child, but now that he has the backing of both higher Courts, he has the ammunition now to go ahead and do what he has done in the past. Judge Carmicheal, you got it right, thank you for doing your job and I hope you make it to the Supreme Court. They need a honest, child advocate for the future of Indiana.

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  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

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  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

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