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Justices uphold modification of physical custody to father

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A majority of Indiana Supreme Court justices granted transfer today to Mariea L. Best v. Russell C. Best, No. 06S05-1102-CV-73, and affirmed a special judge’s decision to grant a father physical custody of his daughter M.B. They held the trial court made the necessary findings to support the modification.

Chief Justice Randall T. Shepard and Justices Brent Dickson and Robert Rucker upheld the trial court’s modification of physical custody of the daughter to her father, Russell Best. Russell and Mariea Best divorced in 2004 and had several disputes regarding custody, parenting time, and support since that time. Russell petitioned for a custody modification in 2008 after asserting Mariea didn’t comply with a 2007 court-approved agreement. Mariea responded with her own modification petition and Russell filed an emergency petition for contempt claiming Mariea denied him parenting time with their son. She also filed an emergency petition for temporary custody of their son. After a hearing, Mariea was found in contempt and ordered to return the son to Russell.

After a hearing by Special Judge Rebecca McClure, the court granted Russell’s petition to modify custody and awarded him sole legal and physical custody of their two children, denied Mariea’s petition for modification and contempt, and found her to be in contempt for not paying attorney fees.

The Indiana Court of Appeals rejected Mariea’s claims that the trial court erred in refusing her request to order a custody evaluation and that the trial court didn’t properly modify legal custody of M.B. The appellate court reversed the finding of contempt but affirmed the trial court’s decision to reduce to judgment the unpaid attorney fee obligation. The majority of justices summarily affirmed these decisions by the Court of Appeals and only addressed Mariea’s challenge to the modification of her daughter’s physical custody.

The majority found Judge McClure made the necessary findings that there had been a substantial change in one or more of the statutory factors in Indiana Code Section 31-17-2-21 and that the modification of physical custody was in M.B.’s best interests.

They also declined to reweigh the evidence. Mariea argued that various items of evidence supported her position.

“In summary, sufficient findings were made to support the trial court's decision to modify the physical custody of M.B. And because the mother does not establish a complete absence of evidence supporting the trial court's denial of the mother's request for full physical custody of M.B., we decline to reverse the denial. We find no error in the trial court's decision to place M.B.'s primary physical custody with the father, subject to its specifications of parenting time, which are not challenged,” wrote Justice Dickson.

Justice Frank Sullivan dissented and would deny transfer, believing the decision of the Court of Appeals was correct. Justice Steven David did not participate.

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  1. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  2. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  3. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  4. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  5. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

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