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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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  • 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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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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