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Judges rule on custody issues

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When modifying custody, the change in circumstances required by Indiana Code doesn't need to be so decisive in nature as to make the change necessary for the child's welfare, the Indiana Court of Appeals ruled today.

The holding comes in In re the marriage of: Julie C. v. Andrew C., No. 49A05-0909-CV-523, in which Julie C. argued the trial court abused its discretion by making a de facto modification to joint physical custody and declining to modify joint legal custody to sole legal custody to her; by declining to find Andrew in contempt for failing to pay support; and for not awarding her attorney fees.

Julie has primary physical custody of their two children with Andrew having parenting time on certain days of the week and certain weekends. Andrew later filed a motion to modify his parenting time, seeking to spend more time with his kids. He wanted them to stay with him Monday through Wednesday because that's when his fiancee had custody of her children and they wanted the children to spend time together. Julie then filed for modification of legal custody and back child support because Andrew owed $560.

The trial court found there was a substantial change under Indiana Code Section 31-17-2-21 to warrant modifying parenting time. It awarded Andrew the time he requested and that he pay $10 a week to satisfy his arrearage. The trial court didn't find him in contempt.

The trial court ordered a de facto modification of custody to joint physical custody, the appellate court concluded. Under I.C. 31-17-2-21, a trial court can't modify a custody order unless it's in the best interest of the child and there is a substantial change in one or more of the factors a court may consider under I.C. Section 31-17-2-8. There were additional changes beyond the father's impending marriage - the oldest child wanted to spend more time with his father, and Andrew is attempting to blend his present and future family.

The Court of Appeals also rejected Julie's claim that the change in circumstances must be so decisive in nature to make the change in custody necessary for the child's welfare.

"As the decisive-in-nature language is intertwined with the requirement of unreasonableness, and unreasonableness is no longer required in light of the 1994 amendment, the change in circumstances required by Section 31-17-2-21 need not be so decisive in nature as to make a change in custody necessary for the welfare of the child," wrote Judge Nancy Vaidik.

The judges used the factors listed in I.C. Section 31-17-2-15 to determine the trial court didn't abuse its discretion by not awarding Julie sole legal custody. The trial court is in the best position to weigh the evidence and assess witness credibility, noted Judge Vaidik.

The appellate court also affirmed the decision by the trial court not to find Andrew in contempt on owed child support, affirmed the amount of child support it ordered he pay, and affirmed the decision to not award Julie attorney fees.

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  1. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

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  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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