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COA rules in favor of mother in contentious custody battle

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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.

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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