Appellate court affirms custody modification to father

A juvenile court acted within its discretion when it awarded sole custody of a couple’s children to the father after the mother was arrested for multiple alcohol-related incidents and provided questionable living arrangements, the Court of Appeals has ruled.

Samantha Ellenburg and Calvin Kropp have two children, R.K. and C.K., who were 14 and 11 years old at the time of their custody hearing this past March. The parents previously shared legal custody, with the mother having physical custody while the father exercised parenting time.

But in 2020, Ellenburg had an alcohol problem that manifested into a number of criminal incidents. The mother was convicted twice for Class B misdemeanor public intoxication in May 2020 and was charged the following month with Class C misdemeanor operating a motor vehicle while intoxicated endangering a person and violating the terms of her probation.

Kropp, in response, filed a petition for modification of custody, parenting time and child support that July. Soon after, Ellenburg filed a petition to modify, alleging there had been a substantial change in circumstances due to conflict between Heather Kropp, Calvin’s wife, and the children.

The mother’s petition made no request to change legal custody, only physical custody, while the father’s requested that the court modify custody and make “appropriate orders with respect to custody and parenting time […] and for all other appropriate relief.”

On April 1, the juvenile court issued an order modifying physical custody of the children from the mother to the father and granted Kropp sole legal custody of the children. In support of its decision, the trial court expressed concern that Ellenburg had four separate criminal cases, had a plan to potentially cohabitate with a convicted felon upon his release from incarceration and had decided to leave the children in the care of a repeat criminal offender, among other findings.

Ellenburg insisted those findings did not establish a nexus of harm to the children, so there was no substantial change in circumstances. But the appellate court disagreed, pointing to the fact that she had committed three criminal acts in just two months and also violated the terms of her probation.

Ellenburg also contended the juvenile court erred in awarding the father sole legal custody based on a vague statement, “make a modification of current custody” and “make appropriate orders with respect to custody and parenting time […] and for all other appropriate relief.”  She argued the issue wasn’t before the juvenile court and that the ruling was a prohibited sua sponte order to change custody, pointing to Madden v. Phelps, 152 N.E.3d 602, 610 (Ind. Ct. App. 2020).

But the Court of Appeals found Madden to be distinguishable from this case. It pointed to Indiana Code § 31-17-2-15, which states, “In determining whether an award of joint legal custody under section 13 of this chapter would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody.”

“… (T)he parties presented arguments and evidence which put into question the issue of legal custody,” Chief Judge Cale Bradford wrote for the court. “So, as with all custody considerations, the juvenile court was tasked with, above all, determining the ‘best interest of the child’” Ind. Code § 31-17-2-15, despite any evidence of an agreement by the parties as to legal custody.”

The case is Samantha D. Ellenburg v. Calvin J. Kropp, 21A-JP-574.

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