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Judges rule on custody issues

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When modifying custody, the change in circumstances required by Indiana Code doesn't need to be so decisive in nature as to make the change necessary for the child's welfare, the Indiana Court of Appeals ruled today.

The holding comes in In re the marriage of: Julie C. v. Andrew C., No. 49A05-0909-CV-523, in which Julie C. argued the trial court abused its discretion by making a de facto modification to joint physical custody and declining to modify joint legal custody to sole legal custody to her; by declining to find Andrew in contempt for failing to pay support; and for not awarding her attorney fees.

Julie has primary physical custody of their two children with Andrew having parenting time on certain days of the week and certain weekends. Andrew later filed a motion to modify his parenting time, seeking to spend more time with his kids. He wanted them to stay with him Monday through Wednesday because that's when his fiancee had custody of her children and they wanted the children to spend time together. Julie then filed for modification of legal custody and back child support because Andrew owed $560.

The trial court found there was a substantial change under Indiana Code Section 31-17-2-21 to warrant modifying parenting time. It awarded Andrew the time he requested and that he pay $10 a week to satisfy his arrearage. The trial court didn't find him in contempt.

The trial court ordered a de facto modification of custody to joint physical custody, the appellate court concluded. Under I.C. 31-17-2-21, a trial court can't modify a custody order unless it's in the best interest of the child and there is a substantial change in one or more of the factors a court may consider under I.C. Section 31-17-2-8. There were additional changes beyond the father's impending marriage - the oldest child wanted to spend more time with his father, and Andrew is attempting to blend his present and future family.

The Court of Appeals also rejected Julie's claim that the change in circumstances must be so decisive in nature to make the change in custody necessary for the child's welfare.

"As the decisive-in-nature language is intertwined with the requirement of unreasonableness, and unreasonableness is no longer required in light of the 1994 amendment, the change in circumstances required by Section 31-17-2-21 need not be so decisive in nature as to make a change in custody necessary for the welfare of the child," wrote Judge Nancy Vaidik.

The judges used the factors listed in I.C. Section 31-17-2-15 to determine the trial court didn't abuse its discretion by not awarding Julie sole legal custody. The trial court is in the best position to weigh the evidence and assess witness credibility, noted Judge Vaidik.

The appellate court also affirmed the decision by the trial court not to find Andrew in contempt on owed child support, affirmed the amount of child support it ordered he pay, and affirmed the decision to not award Julie attorney fees.

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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