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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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