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Justices deny transfer to child custody case

February 10, 2017

A divided Indiana Supreme Court has denied transfer to a Clark County custody case, though two justices suggested transfer was warranted because the Indiana Court of Appeals improperly reweighed evidence to reach its September decision.

While the majority voted to deny transfer to Carl Wayne Montgomery v. Patricia Ann Montgomery, 10A01-1511-DR-1910, in a dissenting opinion handed down in a Thursday order, Justice Steve David, joined by Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is not permissible at the appellate level.

“It is not enough that the evidence might have supported a different conclusion; to reverse the trial court, the evidence must lead to but one conclusion,” David wrote.

In its September decision, the Court of Appeals reversed a Clark Circuit Court decision to modify a custody order placing A.M. in the primary physical custody of her mother, Patricia Montgomery. A.M. had previously been in the custody of her father, Carl Montgomery, who accused his ex-wife’s boyfriend of repeatedly abusing A.M.

In its reversal, the appellate court wrote that although there was evidence that Carl Montgomery had attempted to interfere with Patricia Montgomery’s parenting time, such interference did not warrant the revocation of the father’s primary physical custody of A.M. But in the dissent, David wrote that the Clark Circuit Court’s finding that Carl Montgomery was attempting to interfere with his ex-wife’s parenting time was supported by the facts presented to the trial court, thus warranting the modification of the custody agreement in Patricia Montgomery’s favor.

Specifically, David wrote that Carl Montgomery’s allegations about abuse at the hands of Patricia Montgomery’s new boyfriend were fabrications that he repeated three times during court proceedings and that as a result of those allegations, A.M. missed at least five weeks of parenting time with her mother in 2013.

Further, because it is in a child’s best interest to have significant time with both of their parents and because one parent’s continual interference with the other’s parenting time can establish a substantial change in the parties’ interrelationship, a modification of the custody order to award Patricia Montgomery primary physical custody of her daughter was warranted, David wrote.

“The evidence here supports a finding that Father deliberately tried to interfere with Mother’s parenting time and successfully frustrated her attempts to exercise parenting time with A.M., thus a substantial change occurred,” the justice said.

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