Unchanged situation justifies custody reversal, COA rules

Divorced parents who feuded so much they were described as having “drawn their swords” battled over custody of their child such that two trial court judges differed on which parent should have primary custody, but the Court of Appeals of Indiana determined the considerations of the case “make it rather straightforward” that the father should be the primary custodial parent.

David Ross Sanford and Elise Danielle Wilburn had shared legal custody of their child when they divorced in 2011, with Wilburn having primary custody. However, in February 2020, Sanford successfully filed a motion for primary physical custody.

The Putnam Circuit Court granted the father’s motion, concluding the switch was warranted by the “substantial change” in the child’s circumstances while in Wilburn’s custody, including struggling academically, often missing school and having to change schools. The trial court found Sanford could provide a more stable environment and had a more structured plan.

The trial court acknowledged changing primary physical custody “w[ould] not be easy, but for the long-term health of [Child], this is the court’s conclusion.”

In response to the trial court’s July 2020 order, Wilburn reported her ex-husband and his wife to the Indiana Department of Child Services, alleging child neglect. The agency investigated but found the allegation to be unsubstantiated. Also, Wilburn petitioned for a protective order on the child’s behalf against Sanford’s wife.

Wilburn then successfully filed a motion for a change of judge in September, then moved to change primary physical custody of the child.

The second judge was swayed by Wilburn and granted the mother custody. In the findings of fact, the judge stated “… this Judge has never seen a [thirteen-year-old] more homesick than [Child} is.”

On appeal, the Court of Appeals agreed with Sanford that the second trial judge erred in David Ross Sanford v. Elise Danielle Wilburn, 21A-DR-1023.

“Even with this substantial deference — and especially mindful that we not only defer to the second judge’s exercise of discretion but the first judge’s as well — we must reverse the trial court’s most recent custody modification because there is no evidence that there was a substantial change in circumstances justifying a change of custody,” Judge Derek Molter wrote for the court.

In its analysis, the appellate panel noted that the child was not doing well in school while in Wilburn’s custody and that Sanford was found to provide the “best environment” for the child. Also, Wilburn waited 44 days — two weeks after the appeal deadline had lapsed — to file her petition for modification in front of a new judge.

Moreover, in addition to the “near-flawless” case showing Wilburn’s noncompliance with the joint legal custody agreement, Wilburn was cited for contempt on the day she was granted custody because she interfered with Sanford’s parenting time.

“Rather than making this a difficult case, these considerations are what make it rather straightforward,” Molter wrote. “A parent cannot undo a custody modification order by simply waiting a few weeks and filing a new modification petition in front of a new judge. There must be substantially changed circumstances related to the statutory considerations for child custody when compared to those reflected in the previous modification order, and the second judge’s findings here do not support such a conclusion.”

But Sanford was not successful on a second issue seeking reimbursement for probation fees he paid on behalf of the child stemming from an incident during which Wilburn and the child keyed a car in a Walmart parking lot. The trial court denied Sanford’s request for reimbursement, and the COA affirmed.

“Father does not explain how the trial court’s order was mistaken in this regard, including that his brief does not point to evidence regarding fees that he presented at the final hearing,”Molter wrote. “He does point to his ‘Notice to the Court,’ which submitted proof of his payment of the fees, but he did not tender the Notice as evidence at the final hearing and instead filed it with the trial court almost one month after the final hearing.”

-Indiana Lawyer Editor Olivia Covington contributed to this report.

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