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. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  4. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

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