Preview:

ATTORNEY FOR APPELLANT
Nicholas W. Haverstock Burgher & Burgher Corydon, Indiana

ATTORNEY FOR APPELLEE
Mary Beth Mock Madison, Indiana

______________________________________________________________________________

FILED
of the supreme court, court of appeals and tax court

Indiana Supreme Court
_________________________________ No. 13S05-0805-JV-213 IN RE THE MATTER OF THE PATERNITY OF K.I., BY GRANDMOTHER AND NEXT FRIEND J.I.,1

In the

Mar 25 2009, 3:35 pm

CLERK

Appellant-Respondent below, v. J.H., Appellee-Petitioner below. _________________________________ Appeal from the Crawford Circuit Court, No. 13C01-0403-JP-004 The Honorable Curtis Eskew, Special Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 13A05-0706-JV-329 _________________________________

March 25, 2009

Rucker, Justice.
1

This is an amended opinion with a revised caption that now properly identifies the parties and affected persons in accordance with Indiana Administrative Rule 9(G)(4)(d), which became effective January 1, 2009. This amended opinion replaces a prior version issued earlier today, which inadvertently but incorrectly included the full names of the parents and grandmother of the minor child, contrary to the Rule. These persons had previously been publicly identified in the memorandum decision of the Court of Appeals issued prior to the effective date of the Rule.

The trial court modified the custody of a minor from the childs maternal grandmother to the childs natural father. The trial court also directed that grandmother be granted visitation consistent with the Indiana Parenting Time Guidelines. We conclude the trial court correctly modified custody but erred in directing the parties to rely on the Guidelines to determine visitation.

Facts and Procedural History

On November 28, 2001, K.I. was born out-of-wedlock to E.H. who had briefly dated J.H.. At the time the parties relationship ended J.H. was unaware that E.H. was pregnant. And the parties had not communicated with each other since the end of the relationship. Approximately six weeks after K.I.s birth E.H. left the child in the custody of her mother, J.I. Thereafter, J.I. and her husband filed a petition seeking guardianship of K.I. which the trial court granted on September 17, 2002. Appellants App. at 14-15.

Sometime in September or October of 2002 J.H. and E.H. had a chance encounter during which E.H. showed J.H. a picture of K.I. and told J.H. he may be the childs father. On March 12, 2004, acting as next friend of K.I., J.I. filed a petition to establish paternity. Appellees App. at 3-4. Naming J.H. as the respondent, J.I. sought an order declaring J.H. the father of K.I., awarding custody of K.I. to J.I., and directing J.H. to pay child support and reimbursement of medical and hospital expenses. Id. at 4.2

Genetic testing conducted in June 2004 revealed a 99.89% probability that J.H. was the biological father of K.I. Consequently, after a hearing held on September 13, 2004, the trial court entered an order declaring J.H. K.I.s biological father. pertinent part: That the Parties agree to establish parenting time among the parties, including the childs mother, as agreed upon. The order also provided in

2

Although the petition is not in the record before us, apparently the State intervened in this action on March 23, 2004, and filed a Verified Petition to Establish Support. Crawford County CCS, Appellants App. at 1.

2

The Parties agree that custody of the minor child, [K.I.], is to remain with Petitioner, [J.I.], the maternal grandmother. Parties agree that the Court should enter an order for child support, medical and hospitalization expenses of the minor child. State moves the Court for a Hearing date to determine said obligations should the parties not reach an agreement. Appellants App. at 16-17.3

Over the next eighteen months or so J.H. exercised visitation with K.I. on a regular basis and the two spent a significant amount of time together. On August 29, 2006, the State on behalf of J.I. filed a motion to modify child support alleging a substantial and continuing change of circumstances rendering the prior support order no longer adequate. Appellants App. at 20. On September 25, 2006, J.H. filed a Petition for Change of Custody alleging in part: The minor child, [K.I.], has been in the custody of the maternal grandparents since she was approximately six months of age. Respondent, [J.H.], was unaware that he had a child until the paternity petition was brought and had no relationship with the child. At the hearing on September 13, 2004 Respondent, [J.H.], felt the child should remain in the custody of [J.I.] until he had established a relationship with her. Since that time, [J.H.] has obtained a more secure employment and is in a better position to provide for himself and his minor child. Further, he has been exercising regular visitation with [K.I.] and she knows him as her father. Appellants App. at 25. After a hearing conducted on May 17, 2007, the trial court entered an order on June 15, 2007, awarding custody of K.I. to J.H. and granting J.I. visitation consistent with the Indiana Parenting Time Guidelines ("Guidelines"). The order included written findings of fact and conclusions of law. Appellants App. at 7-13.

Captioned as an "Agreed Entry," a child support and medical expense order was entered October 29, 2004. Among other things J.H. was ordered to pay $53.29 per week in child support, child support arrearage in the amount of $1,492.12 calculated from the date of the Petition to Establish Support, and payment of any medical expenses incurred by K.I. not otherwise covered by J.I.s insurance. Appe llants App. at 18-19.
3

3

J.I. appealed contending: (1) the trial court abused its discretion by applying the wrong legal standard for custody modifications from the grandparent to the natural parent, and (2) the trial court abused its discretion in awarding custody of the minor child to the natural father. Appellants Br. at 3. J.H. cross-appealed contending the trial court abused its discretion by granting J.I. visitation under the Guidelines as though she were a noncustodial parent. Appellees Br. at 4. In an unpublished memorandum decision the Court of Appeals determined the legal framework the trial court used in awarding custody to J.H. was incorrect, reversed the trial court on this issue, and remanded the cause "for a determination of whether the parental presumption has been overcome and, if so, whether a modification is in the best interests of K.I. and whether there has been a change in one or more of the relevant statutory factors." In Re The Matter Of The Paternity Of K.I., No. 13A05-0706-JV-329, slip op. at 8 (Ind. Ct. App. Jan. 29, 2008). As for J.H.s cross-appeal, the Court of Appeals concluded that if J.H. should be granted custody on remand, then the trial court should determine whether J.I. should be granted grandparent visitation under Indiana Code section 31-17-5-1 or de facto custodian visitation under Indiana Code section 31-9-2-35.5. Id. at 7-8. Having previously granted transfer, we now affirm in part the judgment of the trial court, and remand this cause for further proceedings.

Standard of Review We review custody modifications for abuse of discretion with a "preference for granting latitude and deference to our trial judges in family law matters." Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). Also, as with all cases tried by the court without a jury, the trial judge in this case entered special findings and conclusions thereon pursuant to Indiana Trial Rule 52(A). In reviewing findings made pursuant to Rule 52, we first determine whether the evidence supports the findings and then whether findings support the judgment. Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind. 2002). On appeal we "shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Ind. Trial Rule 52(A). A judgment is clearly erroneous when there is no evidence supporting the findings or the findings fail to support the judgment. Fraley v. Minger, 829

4

N.E.2d 476, 482 (Ind. 2005). A judgment is also clearly erroneous when the trial court applies the wrong legal standard to properly found facts. Id.

Discussion I.

The central issues in this case are: (1) what standard a trial court should apply when ruling on a parents petition to modify custody of a child who is already in the custody of a third party, and (2) what role, if any, the presumption in favor of the natural parent plays in a modification proceeding. To begin, Indiana Code section 31-14-13-6 provides in pertinent part: "The court may not modify a child custody order unless: (1) modification is in the best interests of the child; and (2) there is a substantial change in one (1) or more of the factors that the court may consider under section 2 and, if applicable, section 2.5 of this chapter."4
4

The section 2 factors are: (1) The age and sex of the child. (2) The wishes of the childs parents. (3) The wishes of the child, with more consideration given to the childs wishes if the child is at least fourteen (14) years of age. (4) The interaction and interrelationship of the child with: (A) the childs parents; (B) the childs siblings; and (C) any other person who may significantly affect the childs best interest. (5) The childs adjustment to home, school, and community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent. (8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) of this chapter.

Ind. Code Ann.

Download In Re the Paternity of K.I., and J.I. v. J.H..pdf

Indiana Law