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Divided COA upholds custody change after mom's stroke

January 25, 2018

A Marshall County child will now be in her father’s care after the Indiana Court of Appeals determined the impact of her mother’s stroke made a change in custody necessary for the best interests of the child.

In October 2013, Amanda Wills suffered a stroke that left her hospitalized for more than two months. Wills was unable to care for her child, C.G., for five to six months after the stroke, and she still suffers from cognitive impairments that affect her ability to express herself, select the correct word and correctly pronounce words.

Then in April 2016, Jeremy Gregory, C.G.’s father, petitioned to modify physical custody of the child, alleging a substantial and continuing change in circumstances as a result of Wills’ stroke. The Marshall Circuit Court granted the petition, finding it was in C.G.’s best interests for Gregory to have primary physical custody.

Wills challenged that decision on appeal in Amanda Wills v. Jeremy Gregory, 50A03-1706-JP-1477, but a majority of an Indiana Court of Appeals panel affirmed Thursday. Judge Paul Mathias, writing for the majority joined by Judge Terry Crone, agreed with the trial court that the implications of Wills’ impaired speaking abilities meant it was in C.G.’s best interests to be in her father’s custody. Mathias specifically pointed to testimony about Wills’ inability to help C.G. with homework and concerns about the child’s hygiene while in her mother’s care.

“Viewing the facts most favorable to the judgment, Father’s concerns regarding communication with Mother, Child’s academic progress, and Child’s hygiene provided the trial court with sufficient probative evidence to conclude that Mother’s ability to serve as the primary physical custodian of Child had been adversely impacted because of her stroke,” he wrote.

Wills argued that forcing C.G. to live in a new home and go to a new school would negatively impact her, but Mathias said the impact of those concerns were overstated. He noted Gregory has shared custody of C.G. for her entire life, including regular visits to his home each week.

But Chief Judge Nancy Vaidik dissented from the majority, writing separately that “the trial court changed physical custody of Child based solely on Mother’s ability to communicate without any evidence that it negatively impacted Child.”

Vaidik noted the miscommunications Gregory and Wills experience are experienced by many separated parents and revolve mostly around their parenting time schedules. But there is nothing in the record to show those miscommunications adversely affected C.G., she wrote. Further, Wills hired a tutor for C.G. when she was struggling in first grade, and nothing in the record indicates she would not do so again, the chief judge wrote.

“Here, undoubtedly, the trial court had the advantage of seeing and hearing Mother testify,” she wrote. “But the evidence must show that the change in circumstances adversely affected Child such that modification is in Child’s best interests. There was no such evidence here.”

“Today’s decision creates unnecessary anxiety for good parents who also happen to have a disability,” she continued. “I firmly believe that, in this case, it was a mistake to modify primary custody from Mother to Father.”

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