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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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