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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. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

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