ILNews

Hearing didn't consider all statutory factors

Back to TopE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

ADVERTISEMENT