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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. 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.

  2. 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.

  3. 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.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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