Recently I wrote about Paternity of X.A.S., a published opinion decided on 04 June 2010, in the Indiana Court of Appeals.
Briefly, the facts were that father had custody while mother had liberal parenting time and both were very active in the life of their son. Father wanted to move from Indianapolis to California to be with his new wife. The trial court said that the child stays in Indy. The Court expressed difficulty in deciding this one and that the call was a narrow one. Ultimately though the Court disagreed and reversed the trial court ruling.
I agree with the rationale of the trial court and believe that the Court erred in reversing that decision.
The trial court judge, Magistrate Kimberly Mattingly, held a hearing on the parties’ motions on August 12, 2009. She denied Father’s request to conduct an in camera interview of X.A.S. saying:
[X.A.S.] is such a young age, what [X.A.S.] is going to tell me is he wants his parents to both live in the same city. I can guarantee that. He’s going to say, given the choice, he’d rather live with his dad. I get that. . . . I’m not particularly interested in his wishes, even. He may tell me he wants to move to California with his dad. He may think that’s what he wants; it’s not what’s best for him. What’s best for him is to have two parents in the same city.
The Court often says it will not reweigh the evidence and that the trial court sits in the best position to examine the evidence and determine the custody arrangements of children. "We review custody modifications for abuse of discretion, and we are deferential to trial court judges in family law matters. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009)."
In this millennium significant progress has been made in advancing what is truly best for children. Much of that has come out of the Marion County court system and other progressive cities while smaller, rural communities still lag and hold onto harmful prejudices. The Court is again erring on the side of harming children.
There is much to understand below the surface on this ruling. I am not concerned about whether this is a victory for fathers or whether it shows that the court is finally showing a willingness to reverse trial court custody orders. My concern is for the impact that this ruling will have on progressive judges and children.
Fatherhood victory?
At first blush this ruling may appear to be a victory for fathers and be championed as such. However, it should not. The father wanted to relocate to be with his new wife thousands of miles away from the mother of the child who was a significant figure in the life of the child on a weekly or near daily basis.
Fathers in general will be more likely to experience relocation because of employment searches after the 2008 economic downtown disproportionately affected males. This could be bad for children because it is important that children maintain a relationship with their fathers. Moreso for a boy age 12 as is in this case. It is more important that children maintain a relationship with both parents though.
In the present case the father indicated that he was relocating regardless of whether the child would relocate with him. Mattingly was confounded by how a parent could place a romantic interest ahead of an obligation to be a parent. I agree but the Court didn't.
The Court says Mattingly erred in characterizing the father as placing his romantic interest ahead of his child. Mattingly found, “Father’s insistence on moving with or without his son effectively robs [X.A.S.] of one of his parents.” The Court stated, "This finding casts aspersion on Father, his motives, and his actions in a way that is wholly unsupported by the record. Father remarried. His wife has a job in California. Therefore, Father is moving to California to be with his wife, and this difficult decision will not change even if he loses custody of X.A.S. To imply that Father’s decision in this regard is selfish, causing unwarranted harm to X.A.S., is not supported by the evidence in the record." I believe the father had another motive.
What was in the record was the testimony of the father that he was going to go live with his wife in the city where she is employed regardless of whether his child would be there. That is tantamount to child abandonment and, in my opinion, shows a complete disregard for the needs of the child.
I do not contend that relocation is bad for children. People move for employment reasons on a regular basis, children are uprooted and forced into making a move. That is fine for intact families. In a fractured family a new dynamic is added. One parent is forced into also having to relocate or lose significant parenting opportunities with the child, robbing that child of a parent at a most needed time; when being uprooted from school, friends and the community.
Following dissolution it is most often that women have custody of children and are the ones more likely to remarry and relocate. To call this case a victory for fathers is a mistake. It will be used as a precedent to allow mothers to remove children from the lives of their fathers.
Reversing erroneous custody orders
Parents, particularly fathers, have long sought relief from the Court to reverse erroneous child custody orders at the trial court level. In having their requests denied the Court regurgitates the same language throughout:
We will not reweigh the evidence or judge the credibility of the witnesses. Leisure v. Wheeler, 828 N.E.2d 409, 414 (Ind. Ct. App. 2005). Rather, we consider only the evidence most favorable to the judgment and any reasonable inferences from that evidence. Id.
In short saying whatever determination the trial court made based upon the evidence before it, even if it is only a scintilla, we will support.
It is welcomed to see the Court willing to reverse a trial court on a custody order particularly one that modified custody from a father to a mother as it is so rare that a father gets custody. I am not confident that this new found spirit by the Court will be used in a way that can benefit children.
"[W]e consider only the evidence most favorable to the judgment and any reasonable inferences from that evidence." That is rather strong language that says if I can find one reason to support the trial court then that trumps your ten reasons not to. Two cases are relevant to this examination of this immediate case.
Courts have expressly recognized that a custodial parent’s relocation alone will not support a modification of custody. Instead, “it is the effect of the move upon the child that renders a relocation substantial or inconsequential—i.e. against or inline [sic] with the child’s best interest.” Lamb v. Wenning, 600 N.E.2d 96, 99 (Ind. 1992).
In Swonder v. Swonder, 642 N.E.2d 1376, 1380 (Ind. Ct. App. 1994) the Court found that it is proper to consider a custodial parent’s motivation when evaluating the propriety of a relocation that separates a child from a non-custodial parent.
In the immediate case a parent insisted on relocating without consideration as to whether the child would accompany the parent. The trial court felt that was not in the best interest and rightfully impugned the motives of the relocating parent which was in line with Swonder. The Court says that the relocation was not a substantial change affecting the best interest of the child and that Mattingly's feelings to the contrary was an error and thus she was reversed. However, Mattingly, while acting in line with Lamb, was clear that it was not the relocation alone but the affect of removing the child from the community and a parent who was substantially involved in the daily life of the child that led to the custody change.
Many of us have been affected by a trial court which has allowed our children to be separated from us against their best interest. What we have heard and I am confident that we will continue to hear "[W]e consider only the evidence most favorable to the judgment and any reasonable inferences from that evidence."
This ruling is not demonstrative of a willingness of the Court to be open to reviewing the trial courts. Rather, this ruling does nothing more than continue a long standing tradition of separating children from their parents to encourage potential harm to the children and the financial rewards that treating or managing the consequences of harmed children can bring to so many professionals.
Financial determination
Should financial conditions determine custody? The Court has already said no. It is inappropriate to modify a child custody arrangement as a means to effect an improvement in the child’s standard of living. Winderlich v. Mace, 616 N.E.2d 1057, 1059 (Ind. Ct. App. 1993).
Mattingly found that preserving the relationship between Mother and X.A.S. would prove “nearly impossible” because the parties would “not be able to purchase numerous round trip airfare to allow frequent visits.”
In this case the father presented and the Court relied upon his testimony that he was willing to pay for the child to return to Indiana three times a year for visits with the mother. I say visits at this point because seeing a child three times per year is not providing Parenting Time but rather visiting. You visit with extended family three times per year but you parent a child much more often.
The Court has determined by this ruling that three times per year is frequent. I wholeheartedly disagree as I believe Mattingly does.
While the Court has previously stated in Winderlich that improving the child's standard of living cannot be used as a basis for modification of custody I believe that is being done here contrary to the spirit of the Winderlich ruling.
It is not that the father is using an improvement in the standard of living of the child as a basis for this reversal of custody but that it is being dictated by financial considerations. The Court relied upon the father's ability to provide financial resources to the child, i.e. pay for the child's flights, as its reasoning in reversing Mattingly.
This is essentially saying that if you have the financial resources you can dictate child custody decisions. I believe this is dangerous precedent.
There is no denying that finances have often dictated who one marries. Long ago it was not at all unusual for parents to chose a suitor for their daughter based upon how they felt that man would be able to support her. With the dynamics of the modern workforce and the earnings ability of women often exceeding that of men such is no longer the case.
The Court is now saying marry someone who is wealthy enough to provide infrequent flights for your child and you will essentially have carte blanche authority to remove your child from the frequent and meaningful interaction with the other parent.
Conclusion
This case is dangerous. It is replete with ill-conceived rational and motives. Children need both parents. Never is this more true than when both parents are actively involved with the child in the community on an ongoing basis, both are amicable and both provide a stable home. Magistrate Mattingly understands this and advances this precept in cases which come before her.
I agree that the Court should not be reversing the custody decisions of a trial court unless there is abuse of discretion. However, I don't believe that the Court should uphold a custody decision of a trial court if it can find any basis to do so. There should be a balancing factor. Of the many cases I have seen where the Court should have stepped up and reversed this clearly was not the one.
Trial courts are generally reticent to change custody based upon what the Court has said in the past. A stricter rationale than that required for an initial custody determination is “required to support a change in custody because ‘permanence and stability are considered best for the welfare and happiness of the child.’” (quoting Lamb v. Wenning, 600 N.E.2d 96, 97 (Ind. 1992)).
This case hinged on the "permanence and stability" of a child's relationship with two parents and the community versus a living arrangement with one parent. I believe the Court got it wrong and showed that sometimes words have no meaning or have one that is not envisioned by most people.
The father was unemployed after having been accustomed to the lifestyle of his previously high paying job. He married someone who was willing to support him and his child even paying for airline tickets for the child to return to Indianapolis three times per year. He was insistent that he would go live with this woman, who may have been deployed for up to six months at a time, regardless of whether his child would also accompany him.
I believe ample opportunities for employment exist in Indianapolis, although maybe not at the pay scale he desires, and that Mattingly rightfully impugned his motives. She just got it wrong that his motive was to be with the wife he loved. It was to go where he was going to be financially supported by someone.
The Court concluded that "[W]e are confident that the relationship between Mother and son will survive." I do not share their confidence.
I believe that not enough significance will be attached to this case but that it will do more to fracture the bonds between children and two loving and fit parents than any other recent case.
Judges have recently started being more receptive to enforcing the true best interest of children upon their parents and I believe this case will now have a chilling affect on their likelihood of ensuring that children have access to two loving and fit parents.
I just hope I am wrong and eagerly anticipate the day I can proudly boast that I was. Until then I will work through the legislative process to reverse this dangerous ruling.
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