Two Indiana Supreme Court justices have dissented from their colleagues’ denial of transfer in a child custody dispute that resulted with the mother gaining sole legal custody of her kids. The dissenting justices would have granted joint legal custody to both parents instead.
In the case of Flavia Rasheed v. Rocky Rasheed, 19A-DC-01722, the parties were granted joint legal custody with mother having primary physical custody after she filed for divorce in 2017.
The Indiana Court of Appeals reversed and granted mother sole legal custody The appellate court cited the parties’ history of noncooperation, mother’s protective order against father, a guardian ad litem’s recommendation and report and the fact that the trial court did not enter specific findings or reasons for its order.
Members of the Indiana Supreme Court declined to hear the father’s appeal, but dissenting Justice Steven David, joined by Chief Justice Loretta Rush, who have granted transfer.
Specifically, the dissenting justices believe that the COA reweighed evidence and did not appropriately defer to the trial court. Thus, David and Rush would affirm the trial court’s order granting joint legal custody.
“In reversing the trial court however, the Court of Appeals did not mention some evidence favorable to Father: that the parents were both involved in and alternated bringing the older child to therapy; that both parents are involved in the kids’ school and extracurricular activities, with Father perhaps being more involved; the GAL’s testimony that she has no doubts that both parents love the children; and testimony of Father that Mother is trying to get full custody and thus, saying negative things about him and not sharing all the information about the kids with him,” David wrote in dissent.
“The record also reflects Father’s frustration at being kept out of certain school and medical decision making and testimony that the parenting coordinator said that Father is not as bad as Mother makes him out to be. Further, despite problems with communication, the parties’ communications improved with the use of the Family Wizard software tool,” the dissent noted.
It concluded that the case law in Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) applies to the Rasheed’s case.
“If, after reviewing all the evidence, the trial court had given Mother sole legal custody I would have voted to affirm that decision as well,” David wrote. “While there is evidence in the record to support either outcome, the standard of review requires us to affirm the trial court. Further, the Court was fully aware of the GAL report and recommendation as well as other evidence of the discord between the parties. Nevertheless, it concluded joint legal custody was appropriate. For these reasons, I respectfully dissent from the denial of transfer.”