ILNews

Justices uphold modification of physical custody to father

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

ADVERTISEMENT