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COA: Court erred in not granting request for change of judge

January 30, 2012

Indiana’s appellate court has reversed a trial court in denying a mother’s request for change of judge in a custody dispute.

In A.T. (Mother) v. G.T. (Father), No. 39A05-1107-DR-335, A.T., the mother, and G.T., the father, divorced in Trimble County, Ky., in 2009, and the father was appointed as the primary custodial parent. At some point in 2010, the family members moved to Indiana, and in February of that year, the Jefferson Superior Court issued a no-contact order based on allegations of domestic violence committed by G.T. upon A.T. The Trimble Family Court, which retained jurisdiction over the domestic issues, ordered that the mother should have temporary physical custody of the children.

The Kentucky court restored joint custody in October 2010, and the Jefferson Circuit Court eventually assumed jurisdiction in January 2011. When the mother moved from Madison, Ind., to Bloomington, Ind., the father – who had been convicted of misdemeanor domestic battery – filed a petition to modify custody. A hearing was set, and the mother filed her motion for a change of judge, which was denied.

The Court of Appeals held that the trial court should have automatically granted the request for automatic change of judge under Trial Rule 76(B). Furthermore, the trial court should not have held the modification hearing, as it was deprived of jurisdiction by the timely filing of the Trial Rule 76(B) request.

The COA reversed and remanded with instructions that the judge grant the mother’s request for change of judge and that the procedures for the selection of a new judge be immediately implemented. “We urge the parties to cooperate in the timely selection of a new judge and to consider the welfare of their children in resolving this matter,” the court wrote.


 

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