COA: Father should have custody of children

July 28, 2016

Children who were afraid of their stepfather and whose behavior changed after their mother remarried should now be in the custody of their father, the Indiana Court of Appeals affirmed Thursday.

Jessica and Brian Robertson have two children, K.R., born in 2006, and C.R., born in 2007. The couple divorced in 2010 and Jessica Robertson was granted custody. She married Damien Terry in October 2014, and friends and family noticed significant changes in the children’s behavior. Terry also monitored their conversations with their father and often told them what to say. Even Jessica Robertson’s family believed it would be in the kids’ best interests to live with their father.

Brian Robertson, who was in the military at the time, asked for custody in February 2015, and a guardian ad litem was appointed. He planned on being discharged by October of that year and would relocate to be near the children. The GAL recommended the children be placed with the father because mother put her husband before the children, Terry was not a proper role model (he had a criminal record and tried to isolate his wife and stepchildren), and it was not in the best interest for the children to remain in mother’s custody.

The trial court ordered father temporary emergency custody until further order of the court, but mother appealed before a final custody modification order had been entered. Upon order of the COA, the trial court issued its final order in January 2016, granting father custody.

Mother appealed, but father claimed she failed to file a timely notice of appeal, since she didn’t appeal after the January order. The appellate judges, relying on In re Adoption of O.R., 16 N.E.3d 971 (Ind. 2014), decided to address the merits of the case. In doing so, they affirmed the trial court’s decision.

The judges agreed mother’s marriage was a substantial change in circumstances relating to the children and that modification of custody in favor of father is in their best interests. The children were afraid of their stepfather; K.R. had previously asked his grandmother to call the police so he wouldn’t have to return to his mother’s house. Terry had also slapped C.H. for laughing at the dinner table and was arrested for driving while suspended when K.R. was in the car.

The case is Jessica Robertson v. Brian Robertson, 54A01-1509-DR-1374.


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