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Justices deny transfer to child custody case

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A divided Indiana Supreme Court has denied transfer to a Clark County custody case, though two justices suggested transfer was warranted because the Indiana Court of Appeals improperly reweighed evidence to reach its September decision.

While the majority voted to deny transfer to Carl Wayne Montgomery v. Patricia Ann Montgomery, 10A01-1511-DR-1910, in a dissenting opinion handed down in a Thursday order, Justice Steve David, joined by Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is not permissible at the appellate level.

“It is not enough that the evidence might have supported a different conclusion; to reverse the trial court, the evidence must lead to but one conclusion,” David wrote.

In its September decision, the Court of Appeals reversed a Clark Circuit Court decision to modify a custody order placing A.M. in the primary physical custody of her mother, Patricia Montgomery. A.M. had previously been in the custody of her father, Carl Montgomery, who accused his ex-wife’s boyfriend of repeatedly abusing A.M.

In its reversal, the appellate court wrote that although there was evidence that Carl Montgomery had attempted to interfere with Patricia Montgomery’s parenting time, such interference did not warrant the revocation of the father’s primary physical custody of A.M. But in the dissent, David wrote that the Clark Circuit Court’s finding that Carl Montgomery was attempting to interfere with his ex-wife’s parenting time was supported by the facts presented to the trial court, thus warranting the modification of the custody agreement in Patricia Montgomery’s favor.

Specifically, David wrote that Carl Montgomery’s allegations about abuse at the hands of Patricia Montgomery’s new boyfriend were fabrications that he repeated three times during court proceedings and that as a result of those allegations, A.M. missed at least five weeks of parenting time with her mother in 2013.

Further, because it is in a child’s best interest to have significant time with both of their parents and because one parent’s continual interference with the other’s parenting time can establish a substantial change in the parties’ interrelationship, a modification of the custody order to award Patricia Montgomery primary physical custody of her daughter was warranted, David wrote.

“The evidence here supports a finding that Father deliberately tried to interfere with Mother’s parenting time and successfully frustrated her attempts to exercise parenting time with A.M., thus a substantial change occurred,” the justice said.

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  • a confused little girl
    Well things are back to the way they were when the father had custody. No real phone calls. She won't be able to have contact with her mothers side of relatives. No phone calls, cards or presents in the mail. No knowledge where to send them. This little girl is so confused of what to do or say to her mother. I'm sure if this was someone in the judges family, none of us would be writing these comments.
  • Link repair
    From my post below .... I cut and pasted in error: http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468
  • Needs Published
    What a disgrace of Judicial Proceedings. Can complain and write comments forever but someone needs to show the mother how to fight back before he turns this little girl against her.
  • justices deny custody
    The truth comes out Issac Law Firm for Men helped Montgomery to get custody.Should read the lies he told them.How much was paid to the judges?
  • Royalty Hoosier style
    Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?
  • Still Pitiful
    His brother was a former prosecuting attorney for Crawford County, disiplined for stealing law books after his term, and embezzeling funds from family and clients. Highly functional family great morals and values...
    • Any insights
      Wondering if the father was a Lodge member?
    • Rank X2
      @BryanJBrown, You are totally correct. I have no words, you nailed it.....
    • Rank
      Historically speaking pagans devalue children and worship animals. How close are we? Consider the ruling above plus today's tidbit from the politically correct high Court: http://indianacourts.us/times/2016/12/are-you-asking-the-right-questions-intimate-partner-violence-and-pet-abuse/
      • Amen x2
        @ President Snow, like they really read these comments or have the GUTS to show what is the right thing to do. They are just worrying about planning the next retirement party, the others JUST DO NOT CARE about what is right. Its the Good Ol'Boys - they do not care about the rights of the mother or child, they just care about their next vote, which, from what I gather, the mother left the state of Indiana because of the domestic violence that was going on through out the marriage, the father had three restraining orders on him from three different women, but yet, the COA judges sent a strong message, go ahead men put your women in place, do what you have to do, you have our backs... I just wish the REAL truth could be told about this situation... Please pray for this child and mother that God will some how make things right and send a miracle from above.
        • Amen
          Great questions to six jurists. The legislature should open a probe to investigate possible government corruption. Cj rush has shown courage as has justice Steven David. Who stands with them?
          • How Can it Be?
            Can someone please explain why Judge Barnes, Judge Mathias and Chief Judge Vaidik thought it was OK to re weigh the evidence blatantly knowing that by doing so was against the rules and went ahead and voted in favor of the father? I would love to ask them WHY??? I would also like to ask the three Supreme Justices why they thought it was OK too.
            • Miscarriage of Justice
              Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?
            • Child Suffers
              I am extremely disappointed that the State of Indiana decided to look the other way on what is very much a case of father rights vs child safety. It seems that the only person the Appeals Court was looking out for was Mr. Montgomery and unfortunately he was only trying to get back at his ex wife by taking their daughter away from her. I am sad that the child was used as a pawn and he was shown that he could get his way with force and unjust tactics. The child will only end up suffering in the long run. Indiana definitely did not have her best interests in mind.
            • Interesting but
              Those facts are consequential, and I am very sad for that child and mother, but the real story here is found in the first two posts below. The trial court found facts, the appellate court then improperly re-weighed those facts and went the opposite direction. Two of five Supremes rightly blew the whistle on that gross violation of due process. Three of five Supremes closed their eyes to the due process violation, putting a child at risk, refusing to back the trial court, and sending a message to the judicial system that corruption of due process is a-ok in the Hoosier judiciary ... in other words ... "Yes, we have some new blood on the high court, but we are still running the same good old boy plays that we have for decades. Favored sons approach, the disfavored are dismissed."
            • Courts need to put child's welfare first.
              I am concerned with the influence of Father’s Rights Groups in the State of Indiana. Presently, courts seem to be giving leniency to fathers. If a father requests visitations, the court appears to grant the requests, regardless of any concerns for the safety and welfare of the child, or consider whether the father has contributed financially to the support of the child. If a father does not request visitations, there is no accountability. Fathers are never in contempt of court for not fulfilling their obligations of parenting time or forced to comply with missed visits. The courts appear to punish mothers severely if any parenting time is not given to the father, even when justified. It has always been my understanding that courts should always put the child’s best interest first, and the courts should always consider which parent will be most reliable/likely to follow parent guidelines. Important facts documented in this case: 1. There are documented incidents of Carl Montgomery and domestic abuse. A protective order was filed and on record in another state. 2. There are documented contempt of courts against Carl Montgomery for falsifying child abuse; withholding medical and education information of the child from mother; denying visitations; and refusing to cooperate during mediation. 3. The child has displayed progress socially, emotionally and academically in the custody of the Mother . It is unhealthy to uproot a child during the middle of a school year, and not in the best interest of the child. 4. The courts have jeopardized the safety and welfare of the child by denying the appeal and ignoring the serious wrongdoings of the father. 5. Removing a little girl from the stable and loving home of the mother will cause emotional trauma. The child will also be denied interaction with the extended family: maternal grandfather, aunts, sisters, and cousins. In reviewing all the past court cases on file regarding this custody dispute, I am disappointed (appalled) at the court decisions made, and feel it is unfortunate that the Mother has to continuously fight for her parenting rights. When Fathers become intent on winning and see custody as a competition, the child is the one who loses.
            • Can Happen to Any Parent
              A parent can make false allegations against the other with out providing factual evidence and still prevail? This case will open up a whole new window of opportunity for the malicious and narcissistic parent just to get back at the other. I feel sorry for ALL parents who are battling false allegations or parent alienation against the other, hopefully, if their case goes in front of the Courts Of Appeals, they won't have the same out come. If I do not comply with my job requirements and fail to do my job as my employer has hired me to do, guess what? I get fired. I guess they have the GOD complex, they can do what they want , when they want and never suffer the consequences. I am sure when this child is older, becomes an adult, lets pray they do not end up in prison because this child is going to be used as a pawn by their father for the rest of their life as long as the community stands by and does nothing to stop parents like this father from destroying the child's relationship with their mother.
            • Justices deny transfer
              And how was it that the father bragged about a certain Appeals Court lady judge would rule in favor from the beginning??? Please email me lanag47129@yahoo.com if you want the real truth. Justice was not served.
            • I Do Not Get It
              So, let me understand this... Only two Justices admitted that the Appeals Court did not do their job and now this poor little child has to go through the emotional toll of going back to the father? Where were the other three? Oh that's right, they were planning a retirement party. The mother did not even get a fair Appeals Hearing and that is OK? The Justice's are OK with that? They do not care about the child's well being, I was under the impression Indiana was always looking out for the best interest of their future. This poor child, this poor mother, where was her due process? I just do not get it.... NOBODY is going to try and make this right? Just put a stamp on it, file it away and forget about the innocent child.... No wonder people have lost all respect for the Justice System.
            • Troubling times three
              So two justices can conclude, from the record, that "the Court of Appeals engaged in impermissible reweighing of evidence" revealing, on the bare naked record "a significant departure from accepted law" ... YET ONLY TWO JUSTICES find that such a troubling record "warrants review by the {Supreme] Court." The three other Justices do not argue that such a legal conclusion is unwarranted -- they rather, seemingly, have no problem with the departure from the due process of law. I would guess that the end is right, so the means just matters not? Or is it rather than in Indiana due process of the law means nearly nothing, perhaps departure from it in the Indiana courts is so very common that three justices could not even marshal more than an uninterested yawn in response? Troubling, very troubling.

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