Father wins reversal on parenting time, child support orders, but child will remain with grandparents

A father whose child will remain in the custody of her grandparents has secured a reversal from the Court of Appeals of Indiana after it found the trial court abused its discretion in determining both his parenting time and child support obligations.

In 2015, Brandon Hurst had a child with Shawna Smith. Their daughter, S.H. lived with both Hurst and Smith for about a year.

After that, Smith and S.H. moved in with the child’s maternal grandparents, Renee Smith and Daniel Chubb, at their home in Brownsburg. Meanwhile, Hurst continued to live in Indianapolis.

At some point, Smith moved out of the home due to her drug use, so her parents began raising S.H. full time. From that point on, Hurst only saw S.H. occasionally and did not contact her maternal grandparents for roughly a year.

That changed in 2019, when the grandparents filed a petition for appointment as temporary co-guardians of S.H. so they could enroll her in preschool. The maternal grandparents later sought permanent guardianship and, eventually, custody.

In January 2020, Hurst filed a petition to establish paternity, which later proved that he was S.H.’s natural father.

Later that year, a guardian ad litem recommended that the maternal grandparents be granted third-party custody of S.H., that the guardianship be terminated and that Hurst be given parenting time.

The Hendricks Superior Court ultimately awarded legal custody to the maternal grandparents, finding that was in S.H.’s best interest. It also found that Hurst should be granted parenting time in accordance with the recommendations of the GAL but awarded him less parenting time than that contemplated by the Indiana Parenting Time Guidelines without a written explanation for the deviation. Finally, it ordered Hurst to pay $141 per week in child support through an income withholding order.

On appeal, the Court of Appeals found no abuse of discretion in the trial court’s custody order. However, it founds flaws regarding the amount of child support and parenting time.

Starting with the parenting time order, the COA noted the trial court veered away from the guidelines set for children 5 years old and up.

“Furthermore, the trial court did not include a written explanation indicating why these deviations from the IPTG’s minimum parenting time were necessary or appropriate in this case. Rather, the trial court simply stated that it was following GAL (Rebecca) Eimerman’s recommendations,” Judge Rudolph Pyle wrote. “Simply following a GAL’s recommendations does not satisfy the requirement that the trial court include a written explanation for the deviations.”

The COA also noted the GAL’s recommendation had been made nine months prior to the trial court’s issuance of the parenting order and was based on Hurst’s out-of-date work schedule.

“The trial court abused its discretion in awarding Father less parenting time than contemplated by the IPTG without a written explanation for the deviation,” Pyle wrote. “We therefore remand with instructions for the trial court to either issue a written explanation for its deviation from the IPTG or award Father parenting time consistent with the IPTG.”

As for child support, the appellate court noted that because none of the parties submitted a child support worksheet or testified about their gross incomes, the trial court was ultimately unable to apportion the cost of supporting S.H. between the maternal grandparents and Hurst according to their means.

“Instead, the trial court based its child support calculation on the Maternal Grandparents’ weekly expenses for S.H.’s preschool and medical insurance. This was an abuse of the trial court’s discretion,” Pyle wrote. “Indeed, Maternal Grandparents ‘agree that a child support obligation worksheet should be completed.’ We, therefore, reverse the trial court’s child support calculation and remand with instructions for the trial court to obtain child support worksheets signed by all parties and to recalculate Father’s child support obligation accordingly.”

The case is Brandon Darrell Hurst and Shawna Smith v. Renee A. Smith and Daniel M. Chubb, 21A-JP-1719.

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