ILNews

Mother's rights at issue in COA reversal

Back to TopCommentsE-mailPrintBookmark and Share

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.”

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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

ADVERTISEMENT