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Appeals court reverses judge on visitation ruling

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The state’s intermediate appellate court has reversed a southern Indiana judge’s ruling that a boyfriend should retain visitation rights over an ex-girlfriend’s child. It ruled that the finding is contrary to law because lawmakers didn’t allow for that type of circumstance to warrant visitation.

A unanimous decision came today in K.S. v. B.W., No. 22A05-1102-DR-79, a case from Floyd Superior Judge Susan Orth and Magistrate Judge Daniel B. Burke, Jr. The case involved a child, M.M., born in September 2002. The child’s biological father died the following spring and for about three years starting in 2004, the mother K.S. dated B.W., living with him in West Virginia. The child called B.W. “daddy” and “dad” during that time and the boyfriend was listed on M.M.’s school enrollment papers as her dad. After the two broke up in September 2007, the mother allowed for her ex-boyfriend to maintain regular visits even after she married another man in 2009 and moved back to Indiana.

B.W. filed a motion in September 2009 to establish him as a de factor parent and allow for parenting time, but the mother moved to dismiss that motion for failure to state a claim. She stopped allowing her ex-boyfriend visitation about eights months later.

The trial court last year denied the mother’s motion to dismiss and B.W.’s request to be named a de facto parent, but granted his request to visit with the child every other weekend and ordered the parties meet halfway between Indiana and West Virginia to exchange the girl. The court also denied K.S.’s request that B.W. pay her attorney fees, and early this year the court denied her requests that the judgment be stayed and errors corrected.

In the six-page decision Wednesday, Judge Melissa May wrote that the trial court’s decision was contrary to Indiana Code 31-9-2-25.5 defining a de facto custodian. Specifically, that statute defines someone in that role as the primary caregiver and financial support-giver of a child residing with him or her for at least six months if the child is younger than 3 and at least one year if the child is at least 3 years old. The statute applies only to custody proceedings after a paternity determination, actions for child custody or modification of custody, and temporary placement of a child in need of services taken into custody.

The Court of Appeals also cited Indiana Supreme Court caselaw holding that the statute only applies to custody and is silent on visitation. One of the most recent decisions on that came in K.I. ex rel. J.I. v. J.H., 903 N.E. 2d 453, 461-62 (Ind. 2009), and the Court of Appeals determined that the reasoning in K.I. controls in this situation.

“We must accordingly reverse the grant of visitation to B.W. because (he) is not M.M.’s father,” Judge May wrote. “While he was an important part of M.M.’s life at one time, Indiana does not provide for an order of visitation under this circumstance.”

The appellate panel affirmed the lower court’s denial of K.S.’s request for attorney fees, which she had argued should be awarded because B.W.’s claims were “unreasonable, groundless, and frivolous.” But the appellate court determined state statute allows for attorney fees to go to a “prevailing party” and the trial court was correct in denying those fees because K.S. didn’t prevail at trial.

Reading the court’s ruling, Indianapolis attorney Andrew Soshnick – past chair of the Indiana State Bar Association’s Family Law section – found the attorney fee aspect of the case interesting since the appeals court found the trial court had wrongly ruled against the mother on the visitation issue and in that reversal essentially declared her as “prevailing” after the fact.

He noted that the attorney fee statute, Indiana Code 34-52-1-1(b)(2) goes to meritless claims, and that while the mother could argue that B.W. brought a meritless claim because of what state law says, his argument wasn’t without merit. He suggested that the trial and appellate courts might not have wanted to assess attorney fees against the ex-boyfriend because he had been such an important part of the child’s life at one point before she remarried.

“Given the discretion in applying the fee statute, and the politics of the situation, it is not surprising that the fee denial was upheld,” Soshnick said.
 

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  1. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

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  3. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

  4. JLAP and other courtiers ... Those running court systems, have most substance abuse issues. Probably self medicating to cover conscience issues arising out of acts furthering govt corruption

  5. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

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