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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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