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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. How nice, on the day of my car accident on the way to work at the Indiana Supreme Court. Unlike the others, I did not steal any money or do ANYTHING unethical whatsoever. I am suing the Indiana Supreme Court and appealed the failure of the district court in SDIN to protect me. I am suing the federal judge because she failed to protect me and her abandonment of jurisdiction leaves her open to lawsuits because she stripped herself of immunity. I am a candidate for Indiana Supreme Court justice, and they imposed just enough sanction so that I am made ineligible. I am asking the 7th Circuit to remove all of them and appoint me as the new Chief Justice of Indiana. That's what they get for dishonoring my sacrifice and and violating the ADA in about 50 different ways.

  2. Can anyone please help this mother and child? We can all discuss the mother's rights, child's rights when this court only considered the father's rights. It is actually scarey to think a man like this even being a father period with custody of this child. I don't believe any of his other children would have anything good to say about him being their father! How many people are afraid to say anything or try to help because they are afraid of Carl. He's a bully and that his how he gets his way. Please someone help this mother and child. There has to be someone that has the heart and the means to help this family.

  3. I enrolled America's 1st tax-free Health Savings Account (HSA) so you can trust me. I bet 1/3 of my clients were lawyers because they love tax-free deposits, growth and withdrawals or total tax freedom. Most of the time (always) these clients are uninformed about insurance law. Employer-based health insurance is simple if you read the policy. It says, Employers (lawyers) and employees who are working 30-hours-per-week are ELIGIBLE for insurance. Then I show the lawyer the TERMINATION clause which states: When you are no longer ELIGIBLE! Then I ask a closing question (sales term) to the lawyer which is, "If you have a stroke or cancer and become too sick to work can you keep your health insurance?" If the lawyer had dependent children they needed a "Dependent Conversion Privilege" in case their child got sick or hurt which the lawyers never had. Lawyers are pretty easy sales. Save premium, eliminate taxes and build wealth!

  4. Ok, so cheap laughs made about the Christian Right. hardiharhar ... All kidding aside, it is Mohammad's followers who you should be seeking divine protection from. Allahu Akbar But progressives are in denial about that, even as Europe crumbles.

  5. Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?

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