When it comes to issues of child custody in Indiana, the best interests of the child are going to be viewed as a higher priority than any other argument presented.
Part of ensuring that the child’s interests are protected is ensuring that each parent involved in litigation is given due process so that he or she may effectively present their case. Ensuring that those due process laws are followed will be the job of the attorney you hire to represent you, so it’s imperative that you choose wisely.
In a recent case out of St. Joseph County, Wilson v. Myers, the Indiana Supreme Court found that a trial court had abused its discretion in modifying a physical custody order for two children absent an evidentiary hearing.
That modification resulted in two children being removed from the home of their father, where they had lived for more than five years, and subsequently being placed with their mother.
The high court ultimately reversed this order and remanded the case back to the lower court for “proper” proceedings.
The case first started back in 2006, when the two parties divorced and physical custody of the two children was awarded to the father. (This in and of itself is noteworthy for the fact that years ago, custody was almost always without question awarded to the mother. That is no longer the case.)
Then in early 2011, the mother filed a motion to modify physical custody with respect to one of the children, requesting that she be given full custody of that child. She later amended her motion to request full custody of both children. The matter was referred to the Domestic Relations Counseling Bureau, which recommended the parents and children attend family counseling.
Subsequent to this, the mother filed a series of motions alleging the father was trying to sabotage the counseling process, prompting the trial court to request direct communication with the counselor. In his testimony, the director of the counseling program expressed outrage when it was learned the father had been covertly taping the counseling sessions. The trial court demanded the recordings be turned over, which they were. The mother’s motion to modify custody was set for a hearing.
At that hearing, the judge announced at the beginning that she intended to rule that day on the mother’s motion. At that time, the father’s counsel requested an evidentiary hearing, as well as an in-camera interview with both children. The father indicated that problems at the counseling sessions were not sufficient reason enough to modify custody.
However, the trial court judge reportedly abruptly stated that she felt a year had been wasted, refused to conduct an evidentiary hearing or an in-camera interview and further granted custody of the children to the mother.
The father appealed. The appellate court affirmed the earlier court’s decision, which was later vacated by the Indiana Supreme Court.
The high court reasoned that Indiana Code bars the court from modifying an order of child custody unless the modification is in the best interest of the child and there is a substantial change in one or more of the factors that the court can consider. Among those elements considered under Ind. Code 31-17-2-21(b):
- The age and gender of the child;
- The wishes of the parent;
- The wishes of the child;
- The child’s relationship to both parents, siblings and others involved;
- The child’s adjustment to home, school and community;
- The physical and mental health of all involved;
- Any evidence of physical or domestic violence.
There is no presumption of favor toward either parent, but the parent requesting modification bears the burden of proof in showing that the existing arrangement is no longer in the best interests of the child.
The high court noting that in the Wilson case, the mother was never made to present evidence showing that a modification was in the best interest of either child.
Further, the court noted that at the last hearing in the case, no witnesses were sworn in or cross-examined and no documents were formally admitted to the record. There were also reportedly no courtroom formalities (and very few civilities) observed, as the parties, attorneys, counselors and the judge talked freely to one another, frequently interrupting, without any semblance of order or formal procedure.
The judge made reference to consideration of “the whole picture,” but failed to offer up any insight as to how that conclusion was reached.
The high court referred to the hearing as “an unorganized shouting match,” which failed to meet the criteria that would have upheld the father’s due process rights, and therefore protected the best interests of the children.
Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City.
Additional Resources:
Wilson v. Myers, Nov. 5, 2013, In the Supreme Court of Indiana, Appeal from St. Joseph Superior Court
More Blog Entries:
Indiana Parenting Time Can’t Be “Negotiated Away” High Court Rules, July 20, 2013, Hammond Child Custody Lawyer Blog