Reversal: Mother’s previous abandonment of children doesn’t rebut parental presumption in grandparent custody case

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A mother’s abandonment of her children five years ago does not mean the children’s grandparents should get custody, a split Court of Appeals of Indiana has ruled.

Erin Jackson and Nikolas McElroy are the parents of L.J. and L.M.

From the time the children were born until 2018, Jackson and the children lived with her parents, David and Angela Jackson. In 2018, she moved out to live with her boyfriend while the children remained with her parents until December 2019.

During the time the children lived with Jackson’s parents, she did not have consistent parenting time, and she also had substance abuse issues. But in March 2019, she retrieved the children and moved them into an “appropriate and safe” home.

In March 2020, the grandparents intervened in paternity cases and sought custody of the children as de facto custodians.

The parties subsequently reached an agreement under which Jackson would maintain custody of the children while the grandparents were awarded visitation. The children were also ordered to undergo an evaluation by a counselor and to follow the counselor’s recommendations.

The Vanderburgh Superior Court approved the agreement.

But in December 2021, the grandparents filed a motion claiming Jackson had not taken the children for the evaluation. A court-appointed guardian ad litem also reported in May 2022 that the children weren’t enrolled in therapy, nor did Jackson ensure they attended parenting time with their father.

The GAL recommended that the grandparents have primary physical custody of the children.

The grandparents then petitioned to modify custody of the children, and McElroy consented.

The trial court ultimately found that the grandparents were de facto custodians of the children, that Jackson had abandoned the children, and that it was in the children’s best interests for the grandparents to have custody. The court thus awarded custody of the children to grandparents, with both Jackson and Elroy receiving parenting time.

On appeal, Jackson argued that the trial court erred in modifying custody of the children to the grandparents, and the Court of Appeals agreed.

“By the time Grandparents sought to modify custody of the children in May 2022, the children had lived with Mother for two-and-a-half years,” Judge Nancy Vaidik wrote. “Although Mother abandoned the children from June 2018 to December 2019, it was so far in the past that it can’t be relied on to rebut the parental presumption favoring Mother.

“… In short, third parties should not be allowed to ‘bank’ long-past periods of poor parenting to be wielded against parents after circumstances have improved significantly,” Vaidik wrote. “Because Grandparents did not rebut the natural-parent presumption by clear and convincing evidence, the trial court’s judgment is clearly erroneous.”

The case was remanded with instructions to award Jackson custody of the children and to reinstate the prior orders giving the grandparents visitation and McElroy parenting time.

Judge Elaine Brone concurred in In re the Paternity of L.J. and L.M. (Minor Children) Erin Jackson (Mother) v. Nikolas A. McElroy (Father) and David and Angela Jackson, 23A-JP-776.

But Judge Cale Bradford dissented, writing, “(T)he record contains more than enough evidence to rebut the presumption that Mother should have custody of the Children.”

“Even if the abandonment is taken off of the table, we are left with findings, supported by evidence, that Grandparents’ residence is considered the Children’s ‘home base’; Maternal Grandfather saw to it that L.J. received the therapy he requires; Grandparents enrolled the Children in school and got them involved in basketball, baseball, fishing, Cub Scouts, and hiking; and Grandparents provided Children with a stable home,” Bradford wrote. “In contrast, when the Children resided with Mother, she failed to obtain therapy for them for approximately nineteen months, told both of them that Father was not their ‘real’ father, thwarted Father’s visitation with them, and facilitated L.M.’s relationship with a registered sex offender.

“… After hearing this evidence, the trial court was justified in concluding that the best way to ensure that the Children receive the mental-health care they need and reestablish a relationship with Father is to award custody to Grandparents,” Bradford concluded.

Addressing Bradford, the majority wrote, “The dissent concludes that Mother is unfit, thereby rebutting the parental presumption favoring her. But in its order, the trial court did not find that Mother is unfit. And neither Grandparents nor Father claim that Mother is unfit.”

“In any event, other than facts showing that Grandparents are fit (such as that Grandparents’ home was the children’s home base and Grandparents enrolled the children in extracurricular activities), the dissent cites Mother’s tardiness in seeking counseling for the children, which she has since remedied, and thwarting Father’s parenting time,” Vaidik wrote. “Both of these noncompliance issues should be dealt with through the trial court’s contempt powers.

“In fact,” Vaidik wrote, “in this proceeding, the trial court denied Father’s petition for contempt.”

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