Award of custody to father reversed after no findings support ruling

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A court that awarded custody of an 8-year-old child to the father after a modification proceeding had no evidence that doing so was in the child’s best interests, the Indiana Court of Appeals ruled Wednesday, reversing the custody determination.

In 2019, Brandon Powell filed a petition to modify custody of his child with Ashley Souders.

While not wed, the parents had mostly lived together in Indiana and California since I.P’s birth in 2012. They moved back to the Hoosier state in 2017, but mother moved out of father’s house in 2018 and subsequently filed for a court order seeking child support.

A little more than two weeks later, father moved for modification of custody, seeking primary custody “due to his stable residence and employment.” Father lives in Fayette County and works a few days a month as a stagehand. Mother lives in Franklin County with her mother and works full-time as a nursing assistant.

At an evidentiary hearing last September, both sides acknowledged there had never been a formal custody order. Father said he was seeking custody because while he was with the child, mother had been arrested for operating while intoxicated and had been in a car wreck the following day; she was showing “signs of instability”; and she expressed an interest in relocating to central Indiana.

Mother testified at the hearing that she had been the child’s primary custodian since leaving father’s home six months prior and that she provided financial support for the child with little help from father. She also testified that he moved for custody because he didn’t want to pay child support.

Mother further testified, among other things, that I.P. had his own room at maternal grandparent’s house and that she plans to move out when she can afford her own place in Franklin County. She said her son does well in school and has been “surprisingly great” with his routine.

Franklin Circuit Judge Steven J. Cox granted father’s petition for custody without issuing findings or conclusions and granted mother reasonable parenting time, but the Indiana Court of Appeals reversed in IN RE THE PATERNITY of I.P. by next friend Ashley Souders (Mother) v. Brandon E. Powell (Father), 19A-JP-2852.

As a threshold matter, the COA determined that even though no prior custody order was in place, father’s petition should be treated as a petition to modify custody. An Ohio paternity affidavit he had signed expressly gave mother legal custody until a court order designated otherwise.

Father also failed to prove a significant change in circumstance that would warrant a custody modification. Among other things, the COA noted the OWI charge he raised was mother’s only offense, and the crash that occurred the next day was due to black ice.

Likewise, the COA found, granting custody to father was not in the child’s best interests.

“The evidence clearly shows Mother has supported the Child without much contribution from Father and was the Child’s primary caretaker when the couple was together and after the couple split,” Judge Elizabeth Tavitas wrote for the panel. “Father has not paid child support for the Child since Mother and the Child moved away from Father despite his acknowledgement, via the paternity affidavit, that he is the Child’s father.

“In light of the foregoing, no evidence exists in the record from which we could conclude that modification of custody to Father is in the Child’s best interests. … Based on the lack of evidence in the record, the lack of findings and conclusions thereon of the trial court, and, to a lesser extent, the lack of an appellee’s brief, we find insufficient evidence was presented to warrant a change of custody. The trial court abused its discretion in modifying custody,” the panel concluded in remanding the case.

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