A mother will not automatically lose custody of one of her children if she chooses to relocate to Texas, the Indiana Court of Appeals held Tuesday, reversing in part a trial court order in favor of the child’s presumptive father.
“In this case, the trial court’s order operated to automatically modify custody upon the happening of a future event — Mother’s relocation to Texas. This was error, and we reverse the portion of the trial court’s order that automatically grants Father primary custody of H.M. if Mother relocates to Texas,” Chief Judge Nancy Vaidik wrote in Jacqueline Myers v. Mark Myers, 49A02-1310-DR-895.
Otherwise, the court affirmed a Marion Superior order that found for the father, holding that mother had failed to rebut the presumption that Mark Myer’s was the child’s father, and that she had not met her burden to show relocation was in the child’s best interests.
Jacqueline Myers argued that the dissolution record in which she claimed the daughter was the product of an affair proves that her ex-husband was not the child’s father, therefore his objection to her relocation was invalid. “We are not so convinced,” Vaidik wrote.
She cited Indiana Supreme Court Chief Justice Brent Dickson’s dissent in In re Paternity of I.B., 5 N.E.3d 1160, 1161 (Ind. 2014), in which he cautioned that the court should make no determination of a biological father without DNA evidence. No such conclusive evidence is in the record in Myers v. Myers.
“Absent conclusive, direct, clear, and convincing evidence, and in light of the contradictory dissolution order, we cannot say that the presumption that H.M. is a child of the marriage has been rebutted,” the court held.