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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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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