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Appellate court affirms dismissal of protective order against mother

April 12, 2017

The Indiana Court of Appeals has affirmed the dismissal of a grandmother’s petition for a protective order on behalf of her grandson and the subsequent ex parte order, holding the grandmother lacked legal standing to file the petition on his behalf.

In April 2015, an altercation ensued between C.H., the paternal grandmother of H.L., and A.R., the mother of H.L., in which the son attempted intervene. After the altercation was resolved, A.R. was charged with battery against C.H. and H.L., and the Hamilton Circuit Court entered a no-contact order for the grandmother’s protection, though it did not issue one pertaining to H.L.

C.H. then took H.L. into her care and filed a petition for a protective order against A.R. on behalf of H.L., reporting that her grandson had residence in her home, but failing to report that A.R. had previously obtained custody of him. The trial court issue an ex parte order for protection, requiring A.R. to stay away from C.H.’s residence and H.L.’s school.

C.H. then filed an emergency petition for the appointment of guardianship over her grandson, once again failing to inform the court that A.R. had been granted sole legal and physical custody of him. A.R. then filed petitions in both Hamilton and Grant counties, where the earlier paternity and custody issues had been settled, to get H.L. back.

The Hamilton Circuit Court subsequently dismissed C.H.’s guardianship petition “due to the Grant Superior Court having custody jurisdiction over (Son) by its paternity case.” However, C.H. did not return H.L. to his mother.

Meanwhile, A.R. was acquitted of the battery charge against H.L. but convicted of the charge against C.H. The mother then filed a motion to dismiss the ex parte protective order, which the trial court granted and orally ordered that H.L. be returned to his mother.

The trial court also granted A.R.’s motion for attorney fees, ordering C.H. to pay $5,323 to A.R. On appeal, C.H. argued that the trial court had erred in both the dismissal of her petition for protective order and the ex parte order, as well as in the grant of A.R.’s attorney fees.

But the Indiana Court of Appeals affirmed in all respects Wednesday. In the unanimous opinion, Judge Rudolph Pyle wrote that C.H. was neither a parent nor guardian of H.L. when she filed the petition for a protective order on her grandson’s behalf, so the only way she could have brought the petition is if she were “another representative” of H.L. under the protective order statute.

The trial court interpreted “another representative” to mean “legal representative,” and considering the statute as a whole, that interpretation was not an error, Pyle said. Thus, the court correctly dismissed C.H.’s petition for a protective order and the subsequent ex parte order, the judge said.

Additionally, the appellate panel affirmed the award of attorney fees to A.R., holding that C.H. had acted in bad faith by using the ex parte order “as a sword by depriving Mother of her ‘inherent, court-ordered, and constitutional right to the custody of her child.’”

The case is C.H. v. A.R., 29A05-1607-PO-1625.
 

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