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Appeals court orders physical custody of child back to father

September 8, 2016

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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