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Court splits on standard used to modify custody

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Even though the trial court departed from established statutory procedures by using the “best interests” standard to modify physical custody, the majority of Indiana Court of Appeals judges affirmed the lower court’s decision.

In Diane Werner v. Gregory Werner, No. 46A03-1008-DR-447, Diane Werner appealed the LaPorte Superior Senior Judge Steven King’s use of the best interests test to modify custody of the Werner’s two children. Judge King announced during the dissolution decree hearing and later at a custody hearing that his decision would be governed by the best interests test. Diane did not object either time. Diane relocated with the children 35 miles away to be closer to her job and was originally ordered primary physical custody of the children.

At the later custody hearing, Judge King found it would be in the best interests for Gregory to be the children’s primary physical custodian and awarded Diane parenting time.

The standard for modifying custody requires the modification to be in the best interests of the child and that there is a substantial change in one or more of the facts a court may consider under Indiana Code 31-17-2-8. The majority held that Diane waived her claim of error because she didn’t object when Judge King first announced at the dissolution decree and at the beginning of the custody hearing that he was going to use the best interests standard.  

Diane believed the trial court committed a fundamental error by interfering with her custodial relationship by not applying the modification standard as opposed to the best interests standard after an initial custody arrangement has been made. But she didn’t cite any authority for her argument that the use of the best interests standard in this case constitutes fundamental error, wrote Judge Terry Crone. Also, this case doesn’t deal with the termination of Diane’s right to establish a home and raise her children.

Judge Kirsch dissented, pointing out the case also involves the fundamental rights of the children to a stable home. Indiana courts are supposed to modify their custody decisions only upon a showing of a substantial change in one of the enumerated factors of I.C. 31-17-2-8.

“Because the affected interests of such decisions extend beyond the interests of the parents, parents cannot waive this standard,” he wrote. “The trial court committed clear error in ignoring the express statutory directive.”

Judge Crone wrote in response that the purpose of the trial court’s decision here was to allow enough time to gather sufficient information before entering a final custody determination “on less than complete information that could not be altered absent a substantial change in circumstances. … The trial court exercised extreme thoughtfulness and restraint in this regard and, we believe that the trial court's deviation from the general modification standard served the purpose of promoting true long term stability for these children. This is the cornerstone of our statutory law.”

The majority pointed out that they don’t condone the departure from the established statutory procedure and in fact, strongly discourage similar departures in the future. But they are unable to say a mistake has been made in this case.

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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