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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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  2. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  3. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  4. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  5. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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