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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. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

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  3. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

  4. JLAP and other courtiers ... Those running court systems, have most substance abuse issues. Probably self medicating to cover conscience issues arising out of acts furthering govt corruption

  5. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

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