In Re Paternity of As
948 N.E.2d 380
Ind. Ct. App.2011Background
- Father (B.S.) and Mother (E.M.) have a daughter, A.S., with custody disputes and cross-state parental arrangements between Indiana and Missouri.
- In December 2008 the parties agreed to joint legal custody and a week-on/week-off residential schedule, exchanging at a McDonald's in Mount Vernon, Illinois.
- In April 2009 Mother observed bruises on A.S. suggesting possible abuse and sought protective orders in Missouri; Indiana docket later addressed custody and supervision.
- Father recorded telephone conversations with Mother, violating the custody order, and some recordings were admitted at trial.
- The trial court ultimately awarded primary custody to Mother with Father receiving parenting time every other weekend, and remanded for a make-up parenting-time calculation.
- On appeal, the Indiana Court of Appeals upheld admission of the recordings, affirmed the custody modification, and remanded for make-up time, with a partial dissent urging reversal and reinstatement of joint custody.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of recordings | Father contends the non-heard portions of recordings were irrelevant. | Mother argues recordings show Father’s attitude toward co-parenting. | Evidence admissible; recordings relevant to co-parenting attitude. |
| Modification of custody | Father argues no substantial change in circumstances justifies sole custody by Mother. | Mother contends the parents’ inability to co-parent harms A.S., justifying modification. | Modifying custody to give Mother primary custody was not an abuse of discretion. |
| Sanctions and make-up time | Father seeks contempt findings, attorney fees, and make-up time. | Mother argues concurrent culpability and no clear basis for contempt. | Trial court did not abuse discretion; remanded to determine make-up time for Father. |
Key Cases Cited
- Hanson v. Spolnik, 685 N.E.2d 71 (Ind.Ct.App. 1997) (court may not modify custody for lack of cooperation alone)
- Meade v. Levett, 671 N.E.2d 1172 (Ind.Ct.App. 1996) (cooperation not sole basis for changing custody; risk to child required)
- McKay v. McKay, 644 N.E.2d 164 (Ind.Ct.App. 1994) (courts should not substitute themselves as referee in family disputes)
- Johnson v. American Classic Mortg. Corp., 894 N.E.2d 268 (Ind.Ct.App. 2008) (deference to trial court on findings of fact; error at law reviewed de novo)
- Dorman v. Osmose, Inc., 873 N.E.2d 1102 (Ind.Ct.App. 2007) (evidentiary rulings reviewed for abuse of discretion)
- Carrasco v. Grubb, 824 N.E.2d 705 (Ind.Ct.App. 2005) (attorney-fee awards weighed against misconduct and ability to pay)