ILNews

Hearing didn't consider all statutory factors

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In a modification of physical custody case, the Indiana Court of Appeals remanded for further proceedings because the trial court was required to hear evidence on and consider all of the factors listed in Indiana Code Section 31-17-2.2-1(b).

In the case In the Matter of the Paternity of J.J., a child born out of wedlock by next friend, Garnet S. v. Wess A.J., No. 08A02-0903-JV-280, mother Garnet S. appealed the trial court modification of physical custody of daughter J.J. to father Wess A.J. after Garnet announced she was moving out of state with her husband.

Garnet had physical custody of J.J. and worked two jobs; Wess didn't pay the court-ordered child support, but he often watched J.J. while Garnet worked and provided clothes, diapers, and other necessities for his daughter. Wess didn't have a job and made money doing odd jobs. The trial court found Wess had parenting time for more than half the year in 2007 and 2008, and because he had been the de facto custodial parent it would be the same as a change of custody. It also found J.J. had a close relationship with her siblings, grandparents, and other relatives and moving to Georgia would have a significant impact upon those relationships.

The trial court modified custody by awarding joint custody to the parents, with Wess having primary physical custody and mother having parenting time.

The Court of Appeals determined the trial court abused its discretion when it considered Wess a "de facto custodian" because there's no evidence he financially supported his daughter, wrote Judge Paul Mathias. The trial court may have been commenting on the relationship of Wess with his daughter, but the court should consider the specific circumstances surrounding that relationship. Wess was J.J.'s primary caregiver largely because he wasn't employed or paying child support and Garnet had to work multiple jobs to support their daughter. She was complying with the Indiana Parenting Time Guidelines by offering him first refusal to provide child care while working, wrote Judge Mathias.

"Mother should not be penalized for doing what she was obligated to do, especially when Father was not fulfilling all of his obligations. In short, the trial court should consider not only the existing relationship between Father and J.J. but also the circumstances giving rise to that relationship," he wrote.

Because the record in the instant case doesn't show the parties or trial court fully considered or took into account the requisite statutory factors listed in I.C. Section 31-17-2.2-1(b), the case was remanded with instructions to conduct another hearing on Wess' motion to modify custody and to hear evidence on each of the statutory factors. Absent any exigent circumstances, the court shall order the parties to maintain the status quo pending the outcome of a new hearing.

The appellate court also encouraged parties facing issues involving the custody of children to have an attorney help them with litigation. The parents in this case proceeded pro se during the custody hearing.

"Because the court's order has such a profound effect on the lives of the parties and their children, we cannot emphasize enough the importance of presenting sufficient evidence and developing an adequate record," wrote the judge.

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  1. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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