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Divided COA reverses custody change based on relocation

March 11, 2019

The issue of whether a mother’s relocation could by itself warrant a change in joint custody divided the Indiana Court of Appeals on Monday, which reversed a trial court’s decision to award sole legal custody to the father who was remaining in the Indianapolis area.

Chief Judge Nancy Vaidik and COA Judge Paul Mathias formed the majority that overturned the Hamilton Superior Court’s decision to award sole legal custody of a minor child to his father in In re the Paternity of W.R.H. Casie N. Wheeler v. William Jesse Hinshaw, 18A-JP-1770. 

W.R.H. was born in March 2014, and the child’s parents shared joint custody until mother Casie Wheeler filed a notice of intent to relocate from Indianapolis to Allen County to pursue educational and career opportunities. Father, who lives in Westfield, objected, after which the trial court issued an order awarding him sole legal custody, among other things.

“Father acknowledges that he did not expressly request a change in legal custody but contends that, under Indiana’s parental-relocation statutes, Ind. Code ch. 31-17-2.2, legal custody is placed at issue any time one parent files a notice of intent to relocate and the other parent objects,” Vaidik wrote for the majority. “We disagree with Father’s reading of the statutes, and because he did not otherwise put Mother on notice that he was seeking a change in legal custody, we reverse the modification.”

Specifically, father failed to file a motion seeking a modification of custody. “(A) parent who wants a change in legal custody must ask for one. If Father had done so in this case, it is entirely possible that Mother would have presented significant additional evidence relevant to the specific issue of legal custody. … Instead, after Mother filed her notice of intent to relocate, Father filed a ‘Verified Objection to Petitioner’s Notice of Intent to Relocate and Petition to Modify Child Support.’ In that filing, Father asked the trial court to (1) modify child support, (2) prohibit Mother from relocating the child while the matter was pending, (3) deny Mother’s proposed relocation, (4) award him ‘physical custody’ ‘[s]hould Mother decide to move to Ft. Wayne,’ and (5) ‘set this matter for hearing[.]’ 

“Father specifically requested a change in ‘physical custody,’ thereby putting Mother on notice that physical custody would be at issue at the hearing. If he also wanted a change in legal custody, he should have said so, either in his filing or at the subsequent hearing. He did not. The term ‘legal custody’ was used at the hearing, but only in the context of Father’s request to have Mother found in contempt for allegedly violating the existing legal-custody order. And while evidence was presented that would have been relevant if legal custody had been placed at issue … that evidence was separately relevant to the main issue before the court: whether to allow Mother to move W.H. to New Haven. As such, it cannot be said that the issue of legal custody was tried by consent pursuant to Indiana Trial Rule 15(B) … and Father makes no such argument on appeal. For these reasons, and because Indiana Code section 31-17-2.2-1 does not place legal custody at issue any time there is a hearing regarding a proposed relocation, legal custody was not at issue at the hearing, and the trial court erred by ordering the modification.”

But dissenting Judge Terry Crone would have affirmed the trial court, finding the statute permits the trial court to modify custody “if appropriate,” and that “the statute itself puts parties on notice that custody (both legal and physical), parenting time, and child support are always at issue whenever a court holds a hearing on a party’s notice of intent to move.

“Because the child’s best interest is the touchstone of a custody determination, and because Mother was aware that the issue of custody would be litigated at the hearing, I would affirm the trial court’s award of sole legal custody to Father,” Crone opined in his dissent. “In my view, reversing for possible relitigation of this issue would be a waste of the parties’ and the trial court’s resources.”

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