ILNews

Court remands custody case for new hearing

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Although all three Indiana Court of Appeals judges came to conclusion that the trial court should revisit its order to grant full custody of a child to her abusive father, the judges differed as how the trial court should have approached the matter.

In Anita (Handy) Oberlander v. Kevin Handy, No. 08A04-0903-CV-121, Anita Oberlander and Kevin Handy had a tumultuous and violent relationship which led to Oberlander relocating to South Carolina with her four children, one of which was Handy's daughter. After only three months of marriage, Oberlander filed for divorce and sought a protection order.

Before their final hearing, Handy's visitation with his daughter from another marriage was halted because of his behavior. He also continued to contact Oberlander despite a protection order and only stopped when he was ordered to under his probation for domestic battery and other charges as a result of an incident with Oberlander and a police chase.

Oberlander was unable to find an attorney through legal aid or attend the final hearing in Indiana because of financial constraints. She also claimed she feared for her and her daughter's safety. The trial court proceeded in her absence and ruled in Handy's favor, granting him full custody of A.H. Judge Patricia Riley noted in her dissent this was the same judge who ordered a stop to Handy's visitation with his other daughter. The trial court determined Oberlander had abandoned Handy and hindered visitation, and her conduct was "unconscionable."

Oberlander filed a request for relief from judgment because of fraud. The trial court ordered an investigation by the Department of Child Services, which recommended Oberlander have custody of the daughter and Handy have supervised visitation for the time being. The trial court denied Oberlander's request, finding she didn't prove fraud.

Chief Judge John Baker and Judge Ezra Friedlander upheld the trial court's decision to not grant relief pursuant to Indiana Trial Rule 59 or 60. Her failure to appear precludes her from seeking relief from judgment and precludes her from making a valid argument the trial court actually committed an "error" that must be rectified, wrote Chief Judge Baker.

However, the majority believed the trial court had the option to treat her motion as a motion to modify the custody arrangement set for it its initial order. The majority remanded the matter for the trial court to revisit the case and weigh all the evidence to determine whether a modification of the current custody arrangement is warranted.

"We urge the trial court to look to the factors set forth in Indiana Code section 31-17-2-8 and apply those factors explicitly in its final custody order," he wrote.

In her dissent, Judge Riley wrote she would grant Oberlander's motion to correct error and remand for a new final hearing based on Walker v. Kelley, 819 N.E.2d 832, 837 (Ind. Ct. App. 2004). She also would consider her motion to correct error to be without "procedural defect" because her motion did incorporate her affidavit. The motion is based on her events and is signed by her attorney and herself. She also attached other reports and an affidavit as supporting evidence for her representations.

The judge wrote in a footnote she is troubled by the trial judge's judgment in her award of custody because she was the judge who stopped Handy's visitation with his other daughter.

"Apparently, the domestic violence, Kevin's physical abuse towards A.H., and his anger issues in this cause do not reach the required level of 'irate behavior' to prevent Kevin's custody of A.H.," she wrote.

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  1. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

  2. Such is not uncommon on law school startups. Students and faculty should tap Bruce Green, city attorney of Lufkin, Texas. He led a group of studnets and faculty and sued the ABA as a law student. He knows the ropes, has advised other law school startups. Very astute and principled attorney of unpopular clients, at least in his past, before Lufkin tapped him to run their show.

  3. Not that having the appellate records on Odyssey won't be welcome or useful, but I would rather they first bring in the stray counties that aren't yet connected on the trial court level.

  4. Aristotle said 350 bc: "The most hated sort, and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest. And this term interest, which means the birth of money from money, is applied to the breeding of money because the offspring resembles the parent. Wherefore of an modes of getting wealth this is the most unnatural.

  5. Oh yes, lifetime tenure. The Founders gave that to the federal judges .... at that time no federal district courts existed .... so we are talking the Supreme Court justices only in context ....so that they could rule against traditional marriage and for the other pet projects of the sixties generation. Right. Hmmmm, but I must admit, there is something from that time frame that seems to recommend itself in this context ..... on yes, from a document the Founders penned in 1776: " He has refused his Assent to Laws, the most wholesome and necessary for the public good."

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