938 N.E.2d 278
Ind. Ct. App.2010Background
- M.S. and C.S. lived in a same-sex relationship; S.S. born 2003.
- In 2007, they filed a Joint Petition to Determine Custody seeking joint custody with C.S. as primary custodian.
- September 5, 2007, Bartholomew County court entered a custody/parenting time order reflecting that petition.
- After a 2009 breakup, C.S. withdrew consent; court voided the 2007 order in May 2009 and later reinstated it in November 2009.
- Evidentiary hearing in January 2010; February 2010 order vacated the September 5, 2007 order; the issue on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2007 order was properly vacated | M.S. argues the 2007 order was valid. | C.S. contends the 2007 order was void and properly vacated. | Correct: order void ab initio; vacated properly. |
| Whether the court could modify custody/visitation without a petition or substantial change | M.S. argues modification was proper. | C.S. argues no valid order to modify and no substantial change. | Correct: no modification valid since no enforceable order existed. |
| Whether the court acted within discretion to deny M.S. parenting time | M.S. seeks parenting time as a legal parent or third party. | Court found M.S. not entitled to parenting time; best interests do not support it. | Correct: denial affirmed; M.S. not entitled to parenting time. |
Key Cases Cited
- In re Paternity of E.M.L.G., 863 N.E.2d 867 (Ind.Ct.App.2007) (review standard and void/voidable distinctions; deference to trial court)
- K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453 (Ind.2009) (de facto custodian status relates to custody, not visitation)
- King v. S.B., 837 N.E.2d 965 (Ind.2005) (third-party visitation considerations beyond former stepparents)
- Stidham v. Whelchel, 698 N.E.2d 1152 (Ind.1998) (void versus voidable judgments; collateral attack considerations)
- Beanblossom v. State, 637 N.E.2d 1345 (Ind.Ct.App.1994) (voidness as lacks authority; cure or lack thereof)