The Indiana Court of Appeals today issued a Published opinion affirming a trial court's grant of custody of her child born prior to marriage[fn1] to her later former husband along with their child from their marriage. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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The basis of the custody order came upon Father's emergency petition for custody alleging Mother's incapacity from Huntington's Disease and the effect it is having on her parenting and care of the children. Following a hearing in which the parents, Mother's medical practitioner, and child through an in-camera interview provided testimony the Court made these relevant findings when transferring custody of the children to Father subject to Mother's supervised parenting time.
1] The Court finds that an emergency exists based upon the present incapacity of Mothert to provide care and supervision for the children. The Court’s determination of Mother's incapacity is based upon the medical opinion of her physician.
2] In addition, the Court finds that the report of Mother's physician is supported by the testimony of Father, and during the Court’s in camera interview with child, and by Mother's testimony as well as her behavior in court.
3] The Court finds that Mother relies upon child to fulfill many parental functions, and that this contrary [sic] to child's best interests, as she is saddened and frustrated by the loss of her childhood. The Court further finds that Mother has struck and shoved child, and has consistently and pervasively denied the children parenting time with Father.
4] The Court notes that father is not the biological or legal father of child. Nevertheless, Father has acted in the capacity of the child’s father with Mother's encouragement and consent for many years, and the Dissolution Decree grants Father parenting time rights to child.
5] The Court finds the above facts to constitute a substantial change in one (1) or more of the factors that the court may consider under I.C. 31-17-2-8.5, and finds that modification of custody is in the best interests of both children.
6] Father shall have primary physical custody of both children immediately, subject to parenting time with Mother, which at this time shall be supervised by her sister . . . or such other relatives as agreed, or, if the sister is unable or unwilling to provide said supervision, parenting time shall only be at Family House or some other comparable facility close to Mother's home, at Father's expense.
Mother sought to have the trail court reverse the judgment.[fn2] She argued that she is entitled to relief from the judgment because father had no legal right to pursue custody of Child and the trial court was therefore not permitted to hear the issue. The appellate court disagreed for several reasons. First, although neither the parties nor the trial court specifically referenced this statute in the proceedings, Indiana Code section 31-17-2-25 allows for emergency placement of a child with a person other than a parent. Mother also pointed out, “child” for purposes of the dissolution statutes is defined as “a child or children of both parties to the marriage.”[fn3] However, a trial court adjudicating a dissolution may award custody of a child to a natural or adoptive parent of the child or to a de facto custodian.[fn4] A de facto custodian is defined in part as “a person who has been the primary caregiver for, and financial support of, a child who has resided with the person for at least . . . one (1) year if the child is at least three (3) years of age . . . .” Ind. Code § 31-9-2-35.5. Pursuant to this statute, the Indiana Court of Appeals has prior held that a trial court could determine in a dissolution action whether the husband was entitled to custody of a child not born of the marriage.[fn5]
Thus, the trial court not only had subject matter jurisdiction over the child custody determination for the child of the marriage, but also over the child custody determination involving a third party outside the marriage – Mother's prior born child. Moreover, Mother raised no issue as to the trial court’s personal jurisdiction over the parties. The trial court therefore possessed the two forms of jurisdiction required to render a valid judgment.
Based upon the foregoing and the best interest of the children the trial court's denial of Mother's motion for relief from judgment and return of custody of the children to her was properly denied.
notes
[1] No mention is made in the record of the identity or whereabouts of child’s biological father. The appeals court noted that they might have reached a different conclusion if Child's biological father had filed the motion for relief from judgment alleging a due
process violation in the proceedings which granted custody to a third party with no notice to or an opportunity for him to be heard.
[2] On April 26, 2013, Mother filed a Petition for Modification of custody alleging that
she exercised parenting time in January 2013 and Father had not thereafter complied with the parenting time order; that the emergency alleged by Father had passed and/or stabilized and custody of the children should be returned to Mother; and that if Father desired a permanent change of custody, he should be required to follow the statutory procedure for such modification. Mother also filed a Motion Pursuant to Trial Rule 60 seeking to declare the trial court’s order of July 26, 2012, and all subsequent orders relating to her child void.
[3] Ind. Code § 31-9-2-13(a).
[4] In re Custody of G.J., 796 N.E.2d 756, 762 (Ind. Ct. App. 2003), trans. denied.
[5] Nunn v. Nunn, 791 N.E.2d 779, 784 (Ind. Ct. App. 2003).
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Thursday, April 17, 2014
Father gains custody of Mother's child not of the marriage - Indiana Court of Appeals
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