ILNews

Court rejects automatic change in custody for moving mom

Back to TopCommentsE-mailPrintBookmark and Share

A mother will not automatically lose custody of one of her children if she chooses to relocate to Texas, the Indiana Court of Appeals held Tuesday, reversing in part a trial court order in favor of the child’s presumptive father.

“In this case, the trial court’s order operated to automatically modify custody upon the happening of a future event — Mother’s relocation to Texas. This was error, and we reverse the portion of the trial court’s order that automatically grants Father primary custody of H.M. if Mother relocates to Texas,” Chief Judge Nancy Vaidik wrote in Jacqueline Myers v. Mark Myers, 49A02-1310-DR-895.

Otherwise, the court affirmed a Marion Superior order that found for the father, holding that mother had failed to rebut the presumption that Mark Myer’s was the child’s father, and that she had not met her burden to show relocation was in the child’s best interests.

Jacqueline Myers argued that the dissolution record in which she claimed the daughter was the product of an affair proves that her ex-husband was not the child’s father, therefore his objection to her relocation was invalid. “We are not so convinced,” Vaidik wrote.

She cited Indiana Supreme Court Chief Justice Brent Dickson’s dissent in In re Paternity of I.B., 5 N.E.3d 1160, 1161 (Ind. 2014), in which he cautioned that the court should make no determination of a biological father without DNA evidence. No such conclusive evidence is in the record in Myers v. Myers.

“Absent conclusive, direct, clear, and convincing evidence, and in light of the contradictory dissolution order, we cannot say that the presumption that H.M. is a child of the marriage has been rebutted,” the court held.



 

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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
ADVERTISEMENT