The Indiana Court of Appeals has affirmed a trial court’s decision awarding a mother primary custody of her child, after a joint custody arrangement between the mother and father deteriorated.

In Paternity of A.S.; B.S. v. E.M., No. 82A01-1006-JP-291, the father, B.S., argued that that the mother should have been held in contempt for withholding parenting time. But the appeals court stated that both mother and father – who violated the custody agreement when he recorded the couple’s telephone conversations – could have been found guilty of contempt. Because the trial court did not find either parent in contempt, it did not abuse its discretion, as both parties were treated equally, the COA held.

The mother, E.M., gave birth to the couple’s daughter, A.S., in August 2007. In 2008, E.M. filed a petition to establish paternity of A.S., and the father filed a cross-petition to establish paternity and custody. B.S., a resident of Evansville, was originally granted parenting time every other weekend. In December 2008, the couple agreed to joint custody. The mother, who lives in Eureka, Mo., and B.S. agreed that they would meet about halfway – in Mount Vernon, Ill. – to facilitate A.S.’s transportation to Missouri and Indiana, and the child would stay at each parent’s home for one week at a time. But an ensuing series of miscommunications and missed meeting times or telephone calls led to a rapidly deteriorating relationship between the parents.

In April 2009, E.M. filed a petition for a protective order in the Family Court of St. Louis County, Mo., after she found bruises on the child she thought were indicative of abuse. E.M. obtained a temporary order, but a caseworker found the abuse allegation was unsubstantiated. The father was never served with the protective order, and the record does not reflect that a hearing was held. In May 2009, the father filed a motion titled “Emergency Petition for Custody or in the Alternative, Parenting Time and Order to Appear” in Vanderburgh Superior Court.

The mother filed a motion in response, seeking to modify the father’s parenting time. It was at that hearing that he first learned of the abuse allegations.

The father recorded phone conversations he had with the mother. Two recordings, one from May 31, 2009, and one from August 28, 2009, were played on the record. In his appeal, the father claimed that statements he had made after the mother hung up were not relevant to the case, but the appeals court found that his inflammatory statements showed a lack of willingness to co-parent A.S. The court also held that granting the mother sole custody would be beneficial for A.S., as she could spend more time in educational programs in Missouri. The appeals court found no reason to disallow the father from being granted make-up parenting time and remanded to the trial court to determine how and when that time should be made-up. The COA affirmed the trial court’s findings in all other respects, with Chief Judge Margret Robb dissenting.  

In an eight-page dissent, Chief Judge Robb wrote that she believed the court should modify custody orders only when a substantial change in circumstances has put the child at risk. She wrote that she would have reinstated joint custody and ordered the couple to work out their differences for the sake of the child.