COA: Stepfather gets custody of children, father still has parenting time

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An adoption and custody case has made its way to the Court of Appeals of Indiana for the second time, this time with the court agreeing that even though the father has shown growth in his parenting ability, the stepfather can have custody of two children.

The Court of Appeals ruling affirmed a lower court’s decision, which also granted parenting time to the father.

W.K., the father, and C.K., the mother, were married in 2008. They had two children together before separating in 2013. W.K. moved from where the family was living in Japan to Texas while C.K. moved with the children to California, where their maternal grandparents lived.

The mother filed for divorce in California, and the case was finalized in 2014. The dissolution order provided that the mother had physical custody of the children while the father had parenting time. Both had joint legal custody, and the children spent summers with their father in Texas.

Meanwhile, C.K. began dating T.M., and they moved with the children to Indiana, where he lived. They married in 2016, and the grandparents moved in with them the next year.

The mother and stepfather had a child in 2019, but it was discovered when the mother gave birth that she had stomach cancer. She died in March 2019.

The grandparents continued living with the stepfather and children.

One month later, T.K. came to Indiana to pick up the children and take them to Texas. On the same day, the grandmother filed for emergency guardianship, and the stepfather filed adoption petitions and an emergency petition for immediate temporary custody of the children.

Two days later, the father filed a petition to domesticate the California dissolution decree and a motion to dismiss the adoption petitions. The Hamilton Superior Court granted the father’s petition to domesticate, granted temporary custody of the children to the stepfather for the remainder of the school year, then granted temporary custody to the father until further notice.

In July 2019, the stepfather filed a “Petition for Emergency Hearing for Return of Child[ren] to Indiana,” alleging the children’s school started Aug. 6, but the father had refused to return them to Indiana. The court ordered the father to return the children to Indiana by Aug. 5, with the children to remain in the stepfather’s temporary custody until further order from the court. W.K. was given parenting time with the children during fall break.

But the father didn’t return the children. He instead initiated an action in Texas to enforce the dissolution decree and attempted to enroll the children in school in Texas. The stepfather filed a report with Indiana police, and the father was charged with two counts of Level 6 felony interference with child custody.

He was arrested in Texas, and the stepfather drove to Texas and brought the children back to Indiana. He requested that the charges against the father be dropped, and the charges were dismissed with prejudice.

A guardian ad litem interviewed the children, who reported that their father “spanked” them repeatedly with his hand or a belt and that they were scared of him. One of the children said he would hit the belt on the table to scare them and recalled an incident when the father threw a computer at the mother and hit her in the face. The children said they didn’t want to live with the father.

Meanwhile, the father filed a renewed motion to dismiss the adoption petitions, and the trial court held a hearing on the stepfather’s petition to adopt. The stepfather argued that the father’s consent to adoption wasn’t necessary, and the trial court agreed.

The father appealed, and a Court of Appeals panel reversed the trial court order, holding that the father’s consent was required, in part because the evidence didn’t establish that he was “unfit” to parent.

Following remand and a change of trial court judge, the father filed a renewed motion to dismiss the adoption petitions and a request for emergency custody of the children in July 2021. The stepfather filed a petition for custody, citing Indiana Code § 31-19-11-5.

The trial court denied the father’s motion as “premature” because neither party had “rested its case” on all the issues raised in the adoption petitions and contest of adoption. The stepfather subsequently filed a motion to intervene as a party in the dissolution action, which the court denied as unnecessary, and a request for custody as a de facto custodian of the children.

The father filed a motion for summary judgment on the issues of adoption and custody as a de facto custodian.

The trial court conducted a hearing in May 2022, and the guardian ad litem reports were admitted into evidence. Each report noted the children wanted to live with the stepfather, with parenting time to the father. The reports also indicated the father had ceased physical discipline and appeared to show growth in his parenting.

The trial court ultimately denied the stepfather’s adoption petitions, noting the Court of Appeals’ prior decision that the father’s consent was required. The trial court then granted sole legal custody and primary physical custody to the stepfather and ordered parenting time for the father.

The father appealed, maintaining the trial court erred when it denied his July 2021 motion to dismiss the adoption petitions. He argued the court committed reversible error by delaying its ruling until August 2022.

The Court of Appeals disagreed, noting the father didn’t cite a legal authority imposing a time limit for the dismissal, and the court could find none.

“Moreover, even assuming for the sake of argument only that the trial court erred by waiting until August of 2022 to dismiss the adoption petitions, Father has failed to show that he suffered any harm from that delay,” the opinion reads.

The father also appealed the custody determination, arguing the trial court erred because it didn’t base its decision on the standard articulated in Hendrickson v. Binkley, 316 N.E.2d 376 (Ind. Ct. App. 1974).

The Court of Appeals also disagreed with that argument, noting the Indiana Supreme Court has made it clear that the trial court isn’t limited to Hendrickson’s three-step approach.

The opinion cites other factors that can be found at I.C. 31-17-2-8, including the age and sex of the child, the wishes of the child, and the mental and physical health of everyone involved.

“The trial court did not abuse its discretion or clearly err in its findings applying the … statutory custody standard,” the Court of Appeals ruled, citing the children’s ages of 12 and 13 years old and their “expressed strong wishes to remain in the custody of Stepfather, with parenting time to Father.”

The opinion also noted that while the trial court found the father has ceased physical punishment, he didn’t seem to understand the impact of involving the children in the custody proceedings.

Judge L. Mark Bailey wrote the opinion. Judges Elaine Brown and Leanna Weissmann concurred.

The case is In Re: the Adoption of: W.K., IV, and I.K.; W.K. v. T.M., 22A-AD-2227.

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