ILNews

COA rules in favor of mother in contentious custody battle

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

ADVERTISEMENT