The Order includes background info in paragraphs 1-6. Here is the remainder with my commentary.
7. Pertinent evidence presented at trial was the Mother and Father following the Dissolution of Marriage did have (sic) intimate relationship up and to including February 2010 but did not co-habitat (sic) together.
This is nearly three years after the dissolution. Mother and Father had a very healthy and smooth separation with both parties sharing physical and legal custody equally.
8. There was evidence that the Respondent/Mother had left the minor children at home alone, did not feed them breakfast, and did not at time (sic) buckle them in their car seats.
The children are age 4, 6 and 7. The youngest has cerebral palsy. This behaviour fits definition of neglect. Under Indiana law the court was required to report suspected abuse or neglect. The Madison County Department of Child Services has started an investigation of the mother and visited her home on Thursday 02 December 2010.
9. Further, parties disagree as to whether the Petitioner/Father participated with the Children and medical appointments.
This is essentially a non-finding as it makes no finding as to whether the father did participate with the Children and medical appointments. There was testimony by the children's medical doctor that the father attended appointments.
10. Further evidence indicated that the Petitioner/Father did not participate in the same religious training that the Respondent/Mother exercises and that the Petitioner/Father was agnostic.
I have written about this extensively in another post. This is the section that has raised the ire of numerous constitutional rights advocates and attorneys. It makes NO mention as to whether there was any effect on the children. It also specifically mentions Father's religious preference.
11. There was evidence that the Petitioner/Father did involve himself in the children's activities
Father had numerous witnesses, including Mother, present evidence that he has had significant involvement in the children's lives.
12. At the time of the Property Settlement Agreement, the Petitioner/Father considered himself a Christian and the parties were able to communicate relatively effectively.
This is another troubling finding. It specifically mentions Father and a religion by name.
13. There was evidence that the Petitioner/Father did use profanity in the presence of the children and at time (sic) failed to control his anger. In addition, he was sending a great number of text messages to the Respondent/Mother.
What is conspicuously left out is that in a mutual conversation by text that there is both sending and receipt of texts. The evidence submitted shows that the text were in the form of conversation.
It is therefore the order of the Court that the Respondent/Mother shall have sole legal and physical custody of the minor children of the parties . . .
What we do not see from these "findings" is any statement that there has been a substantial change in one or more of the eight factors that the court may consider. Here is the law on modifying a custody order.
IC 31-17-2-21
Modification of child custody order
Sec. 21. (a) The court may not modify a child custody order unless:
(1) the modification is in the best interests of the child; and
(2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 and, if applicable, section 8.5 of this chapter.
(b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.
(c) 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 and, if applicable, section 8.5 of this chapter.
As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.9.
Here is the law with the eight factors.
IC 31-17-2-8
Custody order
Sec. 8. The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) 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.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) 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.
As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.7; P.L.133-2002, SEC.32.
In looking at the court's 'findings' there is NO language that indicates there has been a substantial change in any of the eight factors. Nor is there any language that says the modification is in the best interest of the children.
For those who keep saying there must be more to the story than Father's religion this should clear it up. Of the seven paragraphs of findings two of them are dedicated to Father's religion. One is additional background information. One is a non-finding. One was confirming that Father has been involved with the children. One talked about negative aspects of the Father. One spoke to the specific findings of neglect of the children by the Mother.
It is quite difficult to objectively look at this Order and say that there has been a substantial change in one or more of the eight factors. Further, it is difficult to see that there is any finding demonstrating that it would be in the best interest of the children to be placed with a parent who has admitted to neglecting them.
A trial court may not modify custody until it determines that a substantial change has occurred and that a modification is in the child’s best interests. Mundon v. Mundon, 703 N.E.2d 1130, 1135 (Ind. Ct. App. 1999). The party seeking the modification bears the burden of demonstrating that the existing custody order is unreasonable because, as a general proposition, stability and permanence are considered best for the child. Haley v. Haley, 771 N.E.2d 743, 745 (Ind. Ct. App. 2002).
I see nothing in the court's 'findings' that demonstrate that a substantial change has occurred and that the modification is in the child’s best interests. The modification in this case was based almost entirely upon Father's religion which is an impermissible establishment of religion.
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