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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. Been there 4 months with 1 paycheck what can i do

  2. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  3. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  4. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  5. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

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