Modification of child custody orders in Indiana, as well as in many other states, typically requires evidence of some material change in circumstances. That is, something is substantially different to such an extent that reconsideration of the previous order is necessary.
Gary child custody attorneys know that some general examples of a material change include:
- The changing needs of the child;
- Whether a parent has properly overseen the child’s physical, social and educational development;
- Whether a parent has the ability or inability to care for, supervise and spend time with the child;
- Whether a parent has the financial means and capacity to provide for the child;
- Whether a parent has decided or must move to a new, much farther location.
These could involve things like moral misconduct, interference with the child’s relationship with the other parent or conviction of a crime.
In the recent case of Frackman v. Rick Enzor, before the Alaska Supreme Court, the court was tasked with considering whether a trial court erred in granting sole legal custody to a father on the basis of a purported material change in circumstance relating to the mother’s alleged substance abuse and untreated mental illness.
The mother appealed on the grounds the information was not new, and was available when the original arrangement was set five years prior.
The parents were married in 1996, had two children and divorced in 2005, after the wife had been diagnosed with bipolar disorder, depression, anorexia and a dependence on both cocaine and alcohol. She reportedly took her medication intermittently and attended therapy and treatment with roughly the same frequency. Additionally, the husband at one point was charged with domestic violence relating to a fight the couple had in the midst of the divorce, though that charge was later dismissed.
During child custody hearings, each parent expressed concerns about the other, though both agreed to share physical and legal custody. The following year, both parties moved for modification of the order, but the court denied those motions on the grounds no new material changes were evident.
Then in March 2011, the father petitioned the court for an injunction of protection against his ex-wife pertaining to the children, after allegations surfaced that she had shoved one child to the ground, drank alcohol during her time with the children and fed one child food to which he was allergic. He also alleged the mother was not receiving treatment for her mental health issues.
The court found new evidence tended to indicate the mother’s alcohol use could put the children in danger. While the investigation continued, the shared custody agreement remained in force, but the mother was ordered to submit to twice-weekly urinalysis testing for alcohol. She failed on numerous occasions to comply with the orders. She also failed to take children to sports practices and also failed to take one child to his performance of the kindergarten play, in which he held the lead role.
The court then awarded sole physical custody to the father, and ordered the mother to comply with alcohol testing. She was granted supervised visits, but violated the order by once having her boyfriend as a supervisor and another time by having no supervisor at all.
After six months, she stopped submitting to urinalysis testing altogether.
She was subsequently given several more chances to comply with the order, but failed each time. There were also reported instances of abuse. For example, one child was pushed outside without a coat as punishment. In another instance, she reportedly threw water in her child’s face.
When one son had the opportunity to travel out of the country for baseball, she refused to cooperate in helping him obtain a passport, later saying she was “just being feisty.”
She was ordered to go psychological testing, at which she was again diagnosed with numerous disorders. The therapist concluded there was little chance the mother would comply with court orders.
The court awarded primary physical and sole legal custody to the father. The court cited the material changes in circumstance as being untreated mental illness, use of alcohol and failure to comply with court orders. The court also noted the children’s academic decline while in the care of their mother.
The mother appealed, arguing issues pertaining to her mental health and substance abuse were available at the time the original custody order was set. She said there had been significant re-litigation of prior issues and allegations.
Upon review, the Alaska Supreme Court first noted the trial court has broad discretion in child custody matters. While allegations of prior substance abuse and mental illness was considered, the court found there was new evidence pertaining to both problems that established a firm basis for a material change in circumstance warranting a new custody order.
Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.
Additional Resources:
Frackman v. Rick Enzor, June 20, 2014, Alaska Supreme Court
More Blog Entries:
Parents Must be Afforded Due Process in Indiana Family Court, Dec. 15, 2013, Indiana Divorce Lawyer Blog