ILNews

Court splits on standard used to modify custody

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  2. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  3. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  4. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  5. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

ADVERTISEMENT