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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Today, I want to use this opportunity to tell everyone about Dr agbuza of agbuzaodera(at)gmail. com, on how he help me reunited with my husband after 2 months of divorce.My husband divorce me because he saw another woman in his office and he said to me that he is no longer in love with me anymore and decide to divorce me.I seek help from the Net and i saw good talk about Dr agbuza and i contact him and explain my problem to him and he cast a spell for me which i use to get my husband back within 2 days.am totally happy because there is no reparations and side-effect. If you need his help Email him at agbuzaodera(at)gmail. com

  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

ADVERTISEMENT