Andrea Simon and Jimmie Busbee v. Amanda Lynn Busbee and Levi A. Fuller (mem. dec.)
02A03-1612-JP-2811
| Ind. Ct. App. | Jul 31, 2017Background
- A.B., born 2012, lived with mother (Amanda Busbee). Father Levi Fuller had parenting time but did not seek custody on appeal.
- Grandparents (Andrea Simon and Jimmie Busbee) provided extensive childcare from 2012–Sept 2015 while mother worked nights; A.B. often stayed overnight at grandparents’ home.
- After mother remarried (2014) and later stopped working (by Aug 2016), conflicts arose: grandparents enrolled A.B. in school without consent, continued school visits after being told not to, took A.B. to their retail store (which sold adult items) over mother’s objections, and a physical altercation occurred between grandfather and mother’s husband.
- DCS investigated multiple complaints by grandparents; all allegations were unsubstantiated and DCS found the mother’s home appropriate.
- Grandparents intervened in the paternity action and filed petitions to modify custody and for grandparent visitation; after a four-day bench trial the trial court (via magistrate findings) denied both petitions and ordered grandparents to pay mother’s attorney fees of $21,664.46.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether grandparents rebutted presumption favoring a parent to modify custody | Grandparents argued long-term caregiving and bond with A.B. justified custody modification or de facto custodianship | Mother argued she is a fit parent, caregiving arrangement was for mutual convenience while she worked, and grandparents failed to show abandonment or parental unfitness | Denial affirmed — grandparents failed to rebut the presumption by clear and convincing evidence; no clear error in finding mother fit |
| Whether grandparents entitled to court-ordered visitation under Grandparent Visitation Act | Grandparents argued mother effectively denied visitation since Sept 2015 and asserted a strong bond with A.B. supporting visitation | Mother argued she is a fit parent, limited visitation for safety/obedience reasons, and family conflict made court-ordered visitation detrimental to child’s best interests | Denial affirmed — trial court properly weighed parent’s decision, conflict, and best interests; grandparents failed to overcome presumption against ordering visitation |
| Whether trial court abused discretion by awarding mother attorney’s fees to be paid by grandparents | Grandparents contended fee award improper without evidentiary hearing and/or statutory basis | Mother relied on statutory authority to recover fees in custody proceedings under Article 17 and presented financial evidence at trial | No abuse of discretion — fees may be awarded under I.C. art. 17; trial court considered parties’ finances during the hearing and reasonably ordered grandparents to pay fees |
Key Cases Cited
- Shell Oil Co. v. Meyer, 705 N.E.2d 962 (Ind. 1998) (standard for overturning findings that rely on incorrect legal standards)
- Yoon v. Yoon, 711 N.E.2d 1265 (Ind. 1999) (review does not reweigh evidence; affirming findings supported by evidence)
- Froelich v. Clark (In re L.L.), 745 N.E.2d 222 (Ind. Ct. App. 2001) (nonparent must show parental unfitness or de facto custodial relationship by clear and convincing evidence)
- T.H. v. R.J., 23 N.E.3d 776 (Ind. Ct. App. 2014) (framework for deference to trial court credibility findings in custody disputes)
- Francis v. Francis, 759 N.E.2d 1106 (Ind. Ct. App. 2001) (presumption favoring parental custody)
- Troxel v. Granville, 530 U.S. 57 (2000) (parental fundamental right to raise children informs visitation determinations)
- K.J.R. v. M.A.B. (In re M.L.B.), 983 N.E.2d 583 (Ind. 2013) (factors for grandparent visitation analysis and burden on grandparents)
- F.M. v. K.F. (In re K.M.), 42 N.E.3d 572 (Ind. Ct. App. 2015) (Rule 52 two-tiered review for findings and judgment)
- Montgomery v. Montgomery, 59 N.E.3d 343 (Ind. Ct. App. 2016) (abuse-of-discretion standard for attorney fee awards in custody cases)
- Allen v. Proksch, 832 N.E.2d 1080 (Ind. Ct. App. 2005) (trial court must hold evidentiary hearing on parties’ financial conditions before awarding fees)