Jeff Arnold recently teamed up with local attorney and former law partner Amy Noe Dudas to win a rare outright reversal of a child custody order before the Indiana Court of Appeals. The Court of Appeals found that the Union Circuit Court judge had failed to consider the relevant laws and the child’s best interests in granting the father’s petition to modify custody. As a result, the Court of Appeals reversed the award of custody to the father and restored custody of the child to her grandmother, where she had been living for the past three years.
Facts of the Case
The now ten-year-old child who is the subject of this case lived with her father following her parents’ separation in 2015. However, in 2016, the child reported that she was being molested by her two older half-brothers in her father’s home. The brothers faced criminal charges and the child went to live with her mother.
In February 2019, the child began residing with her grandmother and her mother signed documents that were intended to give the grandmother custody of the child. No court documents were filed, but the child continued to live with grandmother. Meanwhile, the child’s parents divorced, but could not agree about custody of the child. The trial court appointed a Court Appointed Special Advocate (CASA) for the child, who asked the court in February 2020 to schedule a hearing on parenting time. In March 2020, the grandmother filed a motion to intervene and a petition for third-party custody of the child.
In June 2020, the parties reached a temporary agreement, under which the grandmother would have sole custody of the child, the child would continue in therapy, and the parents would have contact with the child subject to the therapist’s recommendations. The CASA made periodic reports to the court over the next few months, always recommending that the child remain in the grandmother’s custody, as per the agreements of the parents. In March 2021, the CASA issued her final report and asked that her appointment be terminated, which the court granted.
However, only three months later, the child’s father filed a motion to modify custody alleging that the child remaining with her grandmother was no longer in her best interest. He requested that the court award him custody of the child.
In August 2021, the court held a hearing on the father’s petition to modify custody without reappointing the CASA. The father indicated that he had not seen the child since May 2021, that he lived with his wife and three children, and that his two sons who had molested the child would never again reside with him. The grandmother testified that the child was thriving and that although she still had nightmares, her bedwetting had improved. The child no longer was in therapy, but still regularly saw the school counselor.
In December 2021, the trial court granted custody of the child to her father, effective as of the end of the 2021-2022 school year. The court further ordered that until the custody order became effective, the father would have visitation roughly according to the Indiana Parenting Time Guidelines. After the child began residing with her father, the grandmother would have visitation with the child one weekend per month.
We filed an appeal on behalf of the grandmother. The Court of Appeals reviewed the trial court’s opinion to determine whether its findings were clearly erroneous, or whether the evidence supported the court’s findings, and the findings supported the court’s judgments. In family law cases, the Court of Appeals also noted the preference under Indiana law for giving deference to trial judges in family law matters.
The Court of Appeals Decision
Indiana Code § 31-17-2-21 states that a court may not modify a child custody order unless:
- modification is in the best interests of the child; and
- there is a substantial child in one (1) or more of the factors that the court may consider under [Indiana Code § 31-7-2-8] and, if applicable, [Indiana Code § 31-17-2-8.5].
Indiana Code § 31-17-2-8 provides that the trial court shall consider all relevant factors, including:
- The age and sex of the child.
- The wishes of the child’s parent or parents.
- The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
- The interaction and interrelationship of the child with:
- The child’s parent or parents;
- The child’s sibling; and
- Any other person who may significantly affect the child’s best interests
- The child’s adjustment to the child’s:
- The mental and physical health of all individuals involved.
- Evidence of a pattern of domestic or family violence by either parent.
- Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.
- A designation in a power of attorney of:
- The child’s parent; or
- A person found to be a de factor custodian of the parent
Once the parent established a change in one or more of the statutory factors, the third party, or the grandmother in this case, was required to prove by clear and convincing evidence “that the child’s best interests are substantially and significantly served by placement with another person.”
The Court of Appeals noted that the trial court made no specific findings that modifying custody of the child to her father in this case was in the child’s best interests, or any findings as to the best interests of the child at all. Although the Court of Appeals assumed that the child’s father had met his minimal burden of showing a substantial change in one of the statutory factors, it also found that the grandmother had proven by clear and convincing evidence that the child’s best interests were served by remaining in her care.
More specifically, the Court found that while in her father’s care, the child was molested. The child’s parents had allowed her to live with the grandmother for the past three years, and she had had minimal contact with her father during that time. Although her relationship with her father had improved and she no longer was as distressed at seeing him, it was undisputed that the father had not seen the child for at least three months at the time of the custody hearing. In fact, the trial court specifically found that “the parenting time between Father and child has been sporadic, and the child has spent little time at Father’s residence.”
Meanwhile, in grandmother’s care, the child was doing well in school, had stopped bedwetting, and saw the school counselor. However, the child still was experiencing nightmares.
Based on this evidence, the Court of Appeals found that the Union Circuit Court’s order granting the father’s petition to modify custody was in error. The Court of Appeals therefore reversed the trial court’s order, thereby restoring custody of the child to her grandmother.
Call the Law Offices of Jeffrey T. Arnold for the Legal Representation You Need
Getting legal advice from the outset of your child custody case can be critical to the outcome of your case. Learn more about the legal services that we can offer you, and work with us to find the best legal strategy to handle your legal situation. Contact Arnold Law Office today at 765-962-3344 or 866-958-5995 and schedule an appointment about your case.