What may seem obvious to most people didn't seem so to Robin Ann Parks who appealed the order transferring custody of her children to their Paternal grandparents because of her alcohol abuse.
The marriage of Parks and Cary Grube was dissolved in 2006. The father was awarded custody of the parties four children, ages 10-20 years now. In 2007 the parties agreed to modify custody transferring custody of the oldest child to the mother.
It is undisputed that despite being the noncustodial parent, Parks remained very active in the Children's lives.
Cary Grube unexpectedly died at his residence in late 2008. Parks was called to the home that night by the eldest child living there. She didn't stay long and left the children with the paternal grandparents. The children and grandparents believed that she was drunk at that time.
Cary's will stipulated that his parents, the Grube's, would have custody of the children. Following probate Parks filed a petition for custody of the children. The trial court heard evidence and denied her petition. She then appealed.
During these hearings, evidence of Parks's history of alcohol abuse was presented. Specifically, Parks was arrested twice for driving under the influence of alcohol. In addition, Parks's former friend and neighbor, Milissa Woolwine, testified that she used to care for the Children because Parks was intoxicated and that Parks would “come home drunk with a stranger” during her parenting time with the Children.
Similarly, Parks's former boyfriend, Kevin Hembree, testified that Parks was intoxicated “a hundred out of a hundred and twenty” days that she lived with him in 2007. During an in camera interview two children stated that they believed their mother was intoxicated at a birthday party for one of them, which occurred after Cary had died.
Moreover, pages from the journals of the two children were presented which noted that when Parks is intoxicated, she yells at them, calls them names, and tells them that she does not want to see them again. One child wrote that when she is on the school bus, she prays that her mother is not intoxicated when she gets home.
Parks' sole argument on appeal is that there was insufficient evidence to support the trial court's decision to award custody of the Children to the Grubes.
In custody disputes between natural parents and third parties, a presumption exists that it is in the best interest of the child to be placed in the custody of the natural parent. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 458 (Ind. 2009).
Nevertheless, third parties can rebut this presumption by presenting clear and convincing evidence that the best interests of the child will be served by placing the child in the custody of the third party. In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002).
Our Supreme Court has stated that the issue is not merely the "fault" of the natural parent. Rather, it is whether the important and strong presumption that a child's interests are best served by placement with the natural parent is clearly and convincingly overcome by evidence proving that the child's best interests are substantially and significantly served by placement with another person.
When making an argument to the Court of Appeals I feel that it is important not to be annoying or petty. Park's failed to do this. In her brief she argued that she had received counseling following her second drunk driving arrest but had never been treated for "alcoholism". The court had this to say in response, "Parks' argument that we find error on this basis is a request that we engage in senseless hair-splitting, which we decline to do."
One thing I encounter in custody modification proceedings is parties attempting to use circumstances prior to the last custody proceeding. Indiana Code section 31-17-2-21(c) provides that “The court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described by section 8 . . . of this chapter.”
However, as the trial court did in this case a court may consider an ongoing pattern of activities that affect the child's best interest. So even though the 2003 and 2005 arrest for driving while intoxicated occurred prior to the 2007 custody modification, there was evidence presented that the mother was still abusing alcohol and had been doing so for an on-going basis dating back to at least 2003. Thus, it was proper to consider the pre-modification actions.
Finally, Park's argued that the trial court impermissibly relied upon the testimony and wishes of the children to live with their grandparents. Parks is correct that it is a "longstanding rule that a change in the child's wishes, standing alone, cannot support a change in custody.” Williamson v. Williamson, 825 N.E.2d 33, 40 (Ind. Ct. App 2005).
However, Indiana Code section 31-17-2-8(3) states that “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,” is a relevant factor when determining a child's best interests. Ultimately the court must make a decision based upon the best interest of the child but the court may, and should, consider the wishes of the child.
I am a parent who doesn't have custody of my child, not because of any wrongdoing on my part, and can sympathize with the desires of Ms parks to have custody of her children. However, I think it is clear from the case documents that she has a significant problem with alcohol and this affects her ability to be an effective parent to her children. Quite simply the lesson to take from this is don't be a drunk and that factor wil not weigh on your suitability to have custody of your children.
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