COA affirms custody, child support awarded to grandmother after child’s father dies

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The Court of Appeals of Indiana rejected multiple arguments in a mother’s appeal for the custody of her child Tuesday, affirming the Hancock Superior Court’s ruling that it’s in the best interest of the child to live with his paternal grandmother and that the mother must pay child support despite the child receiving survivor benefits.

Elizabeth Jackson and Matthew Thomas had one child together, W.M.T., who was born in 2008. The two were never married.

Thomas filed a paternity action in 2009, and he was eventually awarded primary physical custody while Jackson was awarded parenting time. But Thomas died in October 2019.

W.M.T. has resided with Sharon Thomas, his paternal grandmother, for most, if not all, of his life. Thomas has acted as the child’s primary caregiver, making medical, educational and religious choices for the child.

In December 2019, Thomas filed an emergency petition for custody of W.M.T. The trial court held a hearing without Jackson present and received testimony from Thomas before issuing an ex parte order granting the grandmother custody. The following month, Thomas filed a motion to intervene in the paternity case.

In March 2020, Jackson filed a motion for relief from judgment pursuant to Indiana Trial Rule 60(B), arguing she was not given notice of the petition for emergency custody, the filing violated several Indiana Trial Rules and the order granting Thomas emergency custody of W.M.T. was an impermissible ex parte order. Meanwhile, Thomas filed an amended petition for emergency custody.

The trial court subsequently granted Jackson’s motion, declaring the December ex parte order void and ordering Thomas to return M.W.T. to his mother’s care by June 1. Thomas responded with a renewed motion to intervene, while Jackson moved for attorney fees.

The trial court held hearings on Thomas’ petition for non-party custody in June 2020 and the following month issued its order granting the grandmother sole legal and primary physical custody of W.M.T. Jackson was awarded parenting time and ordered to submit income information for the determination of child support.

Jackson filed an appeal that was later dismissed, and the trial court denied her request for attorney fees. Then in December, on Thomas’ motion, the trial court ordered Jackson to pay Thomas $46 per week in child support, retroactive to Aug. 10, 2020, the day Thomas had filed her motion.

On appeal, Jackson challenged the trial court’s rulings as to custody, child support and attorney fees. The Court of Appeals affirmed in full on all issues.

As to the issue of child custody, the COA affirmed the trial court didn’t abuse its discretion when it admitted certain challenged evidence, didn’t err when it determined Thomas was the child’s de facto custodian and didn’t err when it found modification of W.M.T.’s custody was in the child’s best interests.

Further, the appellate court ruled the exclusion of survivor benefits from the child support calculation was appropriate.

“Should the additional $729.00 be imputed to Paternal Grandmother as income, Mother would then essentially be deriving a benefit from Father’s Survivor’s Benefits meant for Child in the form of a reduction of her child support obligation, and it is well-established law that ‘the right to support lies exclusively with the child,’” COA Judge Melissa May wrote, pointing to Bussert v. Bussert, 677 N.E.2d 68, 71 (Ind. Ct. App. 1997), trans. denied.

Likewise, in affirming the denial of attorney fees, the COA concluded the trial court didn’t abuse its discretion.

“Mother has not demonstrated that Paternal Grandmother acted in bad faith, and considering the ultimate outcome of this case, we cannot say that she did,” May wrote.

The case is In Re the Matter of: Paternity of W.M.T., Elizabeth Jackson v. Sharon Thomas, 21A-JP-57.

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