Ms v. Cs
938 N.E.2d 278
| Ind. Ct. App. | 2010Background
- M.S. and C.S. lived for over a decade in a same-sex relationship and had a child, S.S., born in 2003.
- In 2007 they sought to establish joint legal custody with C.S. as primary physical custodian and M.S. with parenting time under an agreement to follow Indiana Parenting Time Guidelines.
- On September 5, 2007, Bartholomew Superior Court entered an order reflecting joint custody and parenting time as agreed.
- In 2009 the relationship ended after M.S. attacked C.S. and threatened her life in S.S.’s presence; the court found no legal basis to maintain the 2007 order and voided it.
- CS revoked consent to joint custody in May 2009; M.S. moved to reinstate the 2007 order and sought appellate review; the court reinstated the order in November 2009 and later set an evidentiary hearing.
- After an evidentiary hearing in January 2010, the court suspended M.S.’s parenting time and later vacated the September 5, 2007 order on February 26, 2010; M.S. appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2007 order was properly vacated | M.S. contends the 2007 order was valid and binding. | CS argues the 2007 order was void on its face and properly vacated. | Order vacated; void ab initio |
| Whether the court could modify custody without a petition or substantial change | M.S. argues the court could modify under existing order. | CS argues modification requires a petition and substantial change in circumstances. | No modification since 2007 order void; issue moot |
| Whether the court abused its discretion denying M.S. parenting time | M.S. asserts she should have parenting time as a legal/former parent or de facto custodian. | CS argues M.S. has no statutory status to entitle parenting time; best interests supported denial. | Affirmed denial of parenting time; status not established and best interests upheld |
Key Cases Cited
- King v. S.B., 837 N.E.2d 965 (Ind. 2005) (third-party visitation not categorically limited; relevance to status to obtain visitation)
- K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453 (Ind. 2009) (de facto custodian status affects custody determinations; limits on visitation)
- P.E.M. v. P.E.M., 818 N.E.2d 32 (Ind. Ct. App. 2004) (void vs voidable distinctions; procedural defects may be cured, unless jurisdictional authority lacking)
- Beanblossom v. State, 637 N.E.2d 1345 (Ind. Ct. App. 1994) (void judgment for want of authority can be attacked and vacated)
- Levin v. Levin, 645 N.E.2d 601 (Ind. 1994) (equitable estoppel principles related to parental obligations after artificial insemination)