Thursday, March 26, 2015

Indiana Court of Appeals affirms that having Father’s role in child’s life continually diminished by Mother is not in the child’s best interests; Two petition to relocate denials upheld

Judges around the state of Indiana keep telling me what I continue to read from the Indiana Court of Appeals: Children need both parents. The latest affirmation came in an opinion delivered this week in Paternity of G.S. from the Vigo Circuit Court where Judge David R Bolk and Magistrate Daniel R Kelley presided. This was one of two which denied a mother’s petition to relocate as not being in the best interest of the child. The other, Marriage of W.W. and B.W., was delivered yesterday.

In the paternity case Mother repeatedly requested to or relocated to Illinois with the child over Father’s objection and, at times, the orders of the court. Mother’s final request was denied and custody was transferred to Father.

Father was at the hospital during the child’s birth and the parents executed a paternity affidavit and lived together. That relationship eventually ended and the parents appeared in court for the first time on 07 September 2011, to establish parenting time and support. Father was ordered to pay child support and was granted parenting time pursuant to the Indiana Parenting Time Guidelines [IPTG]. In its written order, the trial court specifically advised the parties regarding Indiana’s Relocation Statute and the notice requirements involved if either parent was contemplating a move. Five months after the court entered the order establishing Father’s parenting time and support Father filed a petition for a Temporary Restraining Order [TRO] to prevent Mother from relocating the child to Pekin, Illinois, which is about a three hour drive from Terre Haute. The trial court granted the TRO and held a hearing on 13 February 2012. Following the hearing, Mother withdrew her request to relocate.

Two weeks later, Mother filed a new notice of her intent to relocate to Pekin. Father again objected and the court conducted a lengthy hearing on 24 April 2012. The parties agreed to submit their dispute to mediation. When the parties failed to reach an agreement in mediation, the matter was again heard by the trial court on 01 and 04 February 2013. Thereafter, the court issued its order permitting Mother to move with the child. as far as 100 miles from Terre Haute in order to accommodate her job opportunity with Cracker Barrel but still be near Father who was significantly involved with the child.

On 10 October 2013, Mother filed yet another notice of her intent to relocate to Pekin. Mother claimed that while she had already relocated within the 100-mile limit to Mahomet, Illinois, she still wanted to move farther to Pekin. Father timely filed his objection to the newest relocation petition and requested a modification of child custody from Mother to Father. An evidentiary hearing was held on 11 April 2014.

Similarly, in the dissolution case evidence was presented that Father regularly exercises extensive parenting time with Child. Specifically, he exercises parenting time three days per week, including one overnight every other weekend. Mother proposed that if her proposed relocation was granted, which is three-and-a-half to four hours away by car, Father could have parenting time every other weekend and part of the summer. This would constitute a significant decrease in Father’s parenting time, particularly in light of Father’s work schedule as a firefighter, which requires him to work one twenty-four-hour period every weekend. Thus, Father would be available to spend time with the child only one day every other weekend, or two days per month.

During their respective hearings these fathers performed a key element to achieving success which was to present evidence to the trial court. In the paternity case Father indicated that Mother was not actually living in Mahomet and had moved “for all intents and purposes” to Pekin with the child despite court orders forbidding her from doing so. The Court found that despite its previous order Mother enrolled their son in a preschool in Pekin and that very spring allowed the child’s maternal grandmother to enroll him in a teeball league in Pekin but failed to inform Father of that. Even if Father had been informed, as required by the IPTG, the three-hour distance from Father’s home would be impractical to allow Father, a former teeball coach to his older son, to participate.

In the dissolution case Father presented evidence of his significant involvement with the child as well as the child’s involvement with members of the local extended family of both Mother and Father. Father also presented evidence of the hardship that exercising parenting time as Mother had proposed would place on him and the child. Father also demonstrated that the relocation would significantly deprive the child of a relationship with him. The trial court agreed and found that, in denying Mother’s petition to relocate, it would be against the child’s best interest.

Likewise, the trial court in the paternity case when it stated, “This is precisely the deprivation of parental involvement against which the court was attempting to protect Father by its order of February, 2013.” That trial court concluded that, “[h]aving Father’s role in [their son’s] life continually diminished by Mother is not in the minor child’s best interests, and nothing short of this modification would appear to prevent this at this time. Simply stated, [the child] is to be raised by his parents; not by his mother and grandmother.” [emphasis added]

These judicial officers in the paternity case recognized in this mother something to which I have been exposed to throughout my 10 years of practice. There is a calculated effort by some mothers to remove the father from a child’s life through relocating. More often than not the relocation destination is to reside with their mothers, not parents or elsewhere, for what is questionably a legitimate purpose. Often the purported job opportunities used as the basis for relocation are low wage, entry level positions.

After having her Motion to Reconsider denied Mother appealed.

Mother essentially asserted that the trial court erred by not defaulting to her an instead granting Father’s petition for custody modification and awarding primary physical custody of their son to Father based upon the evidence.

This case is another of numerous ones which I have written about in the past few years that supports my position that judicial officers should be afforded great discretion in crafting child custody and parenting time orders. It is the policy of our reviewing judiciary to grant deference to the trial court judges. This is because optimally the justices do not want litigation to continue.[en1] This deference is afforded to trial courts because they directly interact with the parties and are in a superior position “to assess credibility and character through both factual testimony and intuitive discernment.”[en2]

Our Indiana Supreme Court articulated the preference for deference to trial court judges this way;
Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time. Thus enabled to access credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.[en3]

In the appeal Father failed to timely file a proper appellee’s brief. When an appellee fails to submit a brief on appeal, the Court of Appeals applies a less stringent standard of review with respect to the showing necessary to establish reversible error.[en4] That is the Appellant need only demonstrate that there is an appearance at first site that the trial court erred not that it must be proven through cogent reasoning.

Prior to granting a relocation-based petition to modify custody, the trial court is required to consider all the enumerated relocation factors listed in Indiana Code Section 31-17-2.2-1(b).[en5] The court is also to consider the statutory factors[en6] relevant to an initial custody order or a modification of that order. A relocation-based modification need not involve a substantial change to one of the original best interest factors.[en7]

Although Mother asserted that the trial court did not consider the proper statutory factors the Court of Appeals found that a review of the record and the trial court’s numerous other findings indicated that the trial court did, in fact, properly consider evidence relevant to each of the relocation factors. Mother also asserted that the custody change to Father was not in their son’s best interest. She insisted that the move would not impose any additional hardship and expense on Father to exercise his allotted parenting time. Apparently an additional five hour round trip is free and easy to do especially because the court could order the universe to create an extra five hours on those days exclusively for Father’s use.[en8] Contrary to Mother’s assertion the Court of Appeals found ample evidence in the record to support a conclusion that the move would create a hardship and greatly interfere with the close relationship between Father and their son.

Oh how those pesky documents submitted as evidence and a transcript of the proceedings can really get in the way of a sophistry tendered in a baseless appeal. I will soon provide further elaboration on making illogical arguments based upon my recent conversations with a federal judge and law professor about developing a bias toward an unreasonable litigant.

For now I will wrap this up with the Court of Appeal’s response to the absurd contentions of Mother in the paternity appeal.
“It is crystal clear from this record that Father desires, not simply the minimum parenting time, but to be actively involved in [the child’s] school and extracurricular activities. There was significant evidence presented to the trial court that Mother has disregarded prior court orders and has instead exhibited a consistent pattern of attempting to thwart Father’s relationship with [the child]. Indeed, the trial court specifically found that Mother inappropriately used [the child] as leverage by threatening Father that she would allow him no additional parenting time with [the child] unless he consented to her relocation to Pekin.” [emphasis added]

You can also click here to read about how a mental health professional tried to use a child as leverage to boost her billable time.

[1] See Baxendale v. Raich, 878 N.E.2d 1252, 1257-58 (Ind. 2008).
[2] Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). Conversely, appellate courts “are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).
[3] D.C. v. J.A.C., 977 N.E.2d 951, 956 (Ind. 2012) [4] In re Paternity of S.C., 966 N.E.2d 143, 148 (Ind. Ct. App. 2012), trans. denied.
[5] In re Marriage of Harpenau, 17 N.E.3d 342, 347 (Ind. Ct. App. 2014).
[6] Ind. Code § 31-17-2-8.
[7] Jarrell v. Jarrell, 5 N.E.3d 1186, 1190 (Ind. Ct. App. 2014), trans. denied. (citing Baxendale, 878 N.E.2d at 1256-57).
[8] The position that switching Indiana to Daylight Savings Time would provide “an extra hour of sunlight” was propounded to the Indiana General Assembly and apparently believed. Thus, there may be a basis to believe that an extra five hours of time could be added to a day but I strongly feel that contravenes rules of physics.

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