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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. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

  5. I would like to suggest that you train those who search and help others, to be a Confidential Intermediary. Original Birth Certificates should not be handed out "willie nillie". There are many Birth Parents that have never told any of their families about, much less their Husband and Children about a baby born prior to their Mother's marriage. You can't go directly to her house, knock on her door and say I am the baby that you had years ago. This is what an Intermediary does as well as the search. They are appointed by by the Court after going through training and being Certified. If you would like, I can make a copy of my Certificate to give you an idea. you will need to attend classes and be certified then sworn in to follow the laws. I still am active and working on 5 cases at this time. Considering the fact that I am listed as a Senior Citizen, that's not at all bad. Being Certified is a protection for you as well as the Birth Mother. I have worked with many adoptees as well as the Birth Parents. They will also need understanding, guidance, and emotional help to deal with their own lost child and the love and fear that they have had locked up for all these years. If I could talk with those involved with the legal end, as well as those who do the searches and the Birth Mothers that lost their child, we JUST might find an answer that helps all of those involved. I hope that this will help you and others in the future. If you need to talk, I am listed with the Adoption Agencies here in Michigan. They can give you my phone number. My email address is as follows jatoz8@yahoo.com. Make sure that you use the word ADOPTION as the subject. Thank you for reading my message. Jeanette Abronowitz.

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