Divided COA reverses in first impression de facto custody case

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A split Indiana Court of Appeals has reversed for the reconsideration of a father’s granted motion to modify custody after finding that a woman who raised one of his three children was, in fact, the child’s de facto custodian.

In the case of In the Paternity of M.S., L.S. and S.S. Maria Arriaga v. State of Indiana as Next Friend; Gabriela Ivonne De Landa, (Mother), and Samuel Salazar, (Father), 19A-JP-1595, a dispute arose between Maria Arriaga and Samuel Salazar regarding one of his children, who was raised by Arriaga after the child’s mother, Gabriela De Landa, left her with Arriaga when the child was 6 months old.

Several years later, Salazar filed a petition to modify the existing custody and child support order regarding his children with De Landa, alleging that the child raised by Arriaga had been in Arriaga’s care “for the past year” but that the child should be in the care of a parent instead of a third party.

A trial court entered a provisional order giving custody of two of the three children to Salazar but continued placement of the third child with Arriaga, who then filed a motion to intervene and alleged that she was the child’s de facto custodian.

The trial court later denied Arriaga’s motion when it determined she was not a de facto custodian and ultimately granted Salazar’s motion to modify custody, issuing an order awarding custody of all three children to him. Although a split Indiana Court of Appeals panel concluded that the trial court did not abuse its discretion by denying Arriaga’s motion to reopen the evidence, the panel found the trial court did err when it found Arriaga was not a de facto custodian and misinterpreted Indiana Code Section 31-9-2-35.5.

“The trial court’s finding would mean that, after a child custody proceeding has been commenced, the required minimum period for a de facto custodian determination is forever tolled and cannot be restarted. Under that interpretation, once a child is subject to an initial custody determination, the child could never have a de facto custodian. We hold that the six-month required minimum period under Indiana Code Section 31-9-2-35.5 can be established either before a child custody proceeding has been commenced or after such an initial proceeding has been concluded,” Judge Elizabeth Tavitas wrote for the appellate majority.

Additionally, the majority concluded that that the time period relevant to establishing a de facto custodianship excludes any period of time after a child custody proceeding has been commenced and while it is pending.

“After a child custody proceeding has been commenced and has concluded, however, the calculation of the time relevant to a de facto custodian determination is not tolled. Indeed, to interpret the statute otherwise would lead to an absurd result,” the majority wrote.

“Here, because the Child began living with Arriaga in June 2011, after the Title IV-D proceeding had concluded and the trial court had granted custody of the Child to Mother, the entire time the Child has lived with Arriaga counts toward the statutory time requirement. The Child lived with Arriaga from the age of six months, and she was eight years old when Father filed his petition for modification of custody, which is more than enough time to prove Arriaga’s de facto custodian status,” it wrote, concluding that the trial court erred by determining that Arriaga was not a de facto custodian and therefore abused its discretion by denying her motion to intervene.

The majority ultimately reversed and remanded for the trial court to reconsider its custody modification determination and apply the relevant statutes and cases pertaining to de facto custodians. In a footnote, the appellate court noted it would “express no opinion on the outcome of this custody modification determination.”

Despite concurring in part with the appellate court’s finding on Arriaga’s motion to reopen the case, Judge Nancy Vaidik dissented from the majority’s reversal of the custody decision.

“At the outset, I have no qualms with the general propositions that a de facto custodian is entitled to intervene in a paternity lawsuit, that such an intervention sets up procedural hoops that must be jumped through, and that in some cases failing to abide by those rules may result in reversible error. I dissent because Arriaga simply does not make this de facto-custodian argument on appeal, and given the facts, she wisely concedes that denying her intervention did not have any bearing on the court’s ruling,” Vaidik wrote in a separate opinion.

The dissenting judge concluded that the issue was not raised on appeal, that Arriaga conceded the issue and that she was not prejudiced by the trial court’s procedure.

“I understand that the majority may not agree with the decision of the trial court. But we are a court miles and months away from the courtroom and testimony in this case,” Vaidik opined. “We should not disturb a judgment that is not clearly erroneous on arguments not raised by the parties.”

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