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Mother's rights at issue in COA reversal

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The Indiana Court of Appeals has reversed a paternity ruling from Vanderburgh County, finding that the judge should have taken a second look at the case after a mother wasn’t given a chance to be properly heard on custody of her child.

In the ruling today in The Matter of the Paternity of M.W. (Child), K.W. (Mother) v. B.J. (Father)  No. 82A05-1010-JP-639, the three-judge panel reversed a ruling from Vanderburgh Superior Court that awarded the father joint physical and legal custody.

Paternity was being established to determine appropriate child support for a child born in May 2010. The trial court held a hearing on those matters, and the mother appeared pro se while the father appeared with an attorney. The prosecutor appeared on behalf of the child on the sole issue of child support.

During that hearing, the father admitted paternity and his counsel told the court the father had not spoken to the mother, but that the father wanted joint physical and legal custody. The mother said she didn’t object to that and wanted support, and the trial court granted the paternity and custody and calculated the child support arrangements.

Within a month of that ruling, the mother hired an attorney and filed a motion to correct error and obtain relief from the trial court judgment. She did so on grounds that she didn’t know custody was going to be addressed, she didn’t completely understand at the time what was happening, and that she wasn’t aware she had the right to counsel or a separate hearing on the issues of custody and that the prosecutor wasn’t representing her. The court’s ruling wasn’t in the best interests of her child and she didn’t believe that was considered adequately, she said. In addition, the mother’s request noted that she had not executed a written statement about support, custody, or parenting time and didn’t file a joint petition regarding those issues. She also filed a motion for an expedited hearing.

The trial court denied the motions Oct. 1, 2010, and this appeal ensued.

In reversing the trial court’s decision, Judge Carr Darden wrote for the appellate court panel that the case should be remanded for a new hearing on custody.

“Although the trial court in this case did conduct a hearing to determine custody, nothing in the record indicates that the trial court considered the best interests of M.W. before determining custody,” he wrote. “Furthermore, Mother was unaware that custody would be at issue during the hearing and at no time during the proceedings did she have the benefit of counsel. Given that something as paramount as custody of a minor child is at issue, we find that Mother has established extraordinary circumstances, warranting relief from judgment pursuant to Trial Rule 60(B).”

Judge Michael Barnes concurred with his colleagues, but wrote separately that he believes the case could have been resolved by addressing the trial court’s denial of mother’s Indiana Trial Rule 59 motion to correct error instead of its denial of her 60(B) motion for relief from judgment.

He wrote that the mother’s lack of objection to the father’s request for joint physical and legal custody does not, in his opinion, amount to a verified written stipulation as required by Indiana Code 31-14-10-3, allowing for a trial court to make those findings without the required hearing if the parents agree to it.

“Although I encourage parents to amicably resolve parenting issues, the minimum requirements of this statute were not met here,” the judge wrote. “Under these circumstances, I believe the trial court abused its discretion by denying Mother’s motion to correct error. As such, I concur in result.”

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. 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

  4. 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

  5. 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

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