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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. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  4. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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