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FOR PUBLICATION
ATTORNEY FOR APPELLANTS: JUDITH N. STIMSON Broyles Kight & Ricafort, LLP Indianapolis, Indiana ATTORNEY FOR APPELLEE: OLIVA A. NAPARIU Emswiller Williams Noland & Clarke, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN RE: THE PATERNITY OF Z.T.H., STANLEY C. KETNER and TONI J. KETNER, Appellants/Cross-Petitioners, vs. DANIEL K. HORAN, Appellee/Petitioner, SARA A. KETNER, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 49A04-0504-JV-191

APPEAL FROM THE MARION CIRCUIT COURT The Honorable Alicia A. Gooden, Master Commissioner The Honorable Theodore M. Sosin, Judge Cause No. 49D09-9410-JP-241

December 20, 2005 OPINION - FOR PUBLICATION BARNES, Judge

Case Summary 1 Stanley and Toni Ketner appeal the trial court's granting of Daniel Horan's petition to modify custody. We reverse and remand. Issues The Ketners raise five issues, which we consolidate and restate as: I. whether the parental presumption applies to a parent's request to modify a third party's custody; and whether the trial court properly granted Horan's petition to modify custody.

II.

Facts On February 19, 1991, Horan and the Ketners' daughter, Sara, 2 had Z.T.H. In the late spring of 1993, the Ketners assumed custody of Z.T.H. In October 1994, Horan filed a petition to establish paternity, custody, visitation, and child support, and the Ketners cross-petitioned. On December 22, 1994, Horan, Sara, and the Ketners entered into an agreement that gave the Ketners' custody of Z.T.H., allowed Horan and Sara visitation, obligated the Ketners to maintain medical and dental insurance for Z.T.H., and required Horan and Sara to pay child support.

1

We deny the Ketners' September 16, 2004 motion for oral argument and grant their motion to submit additional authority. Sara is not a participant in this custody dispute.

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Until April 2003, Horan lived in Greene County, and Z.T.H. lived with the Ketners in Zionsville. During that time, Horan maintained regular telephone contact and visitation with Z.T.H. and attended Z.T.H.'s sporting events and school activities. This arrangement continued without objection until April 16, 2003, when Horan moved to Zionsville and petitioned to modify custody because Z.T.H.'s physician and the Ketners placed him on medication for attention deficit disorder without Horan's approval. After further evaluation, however, Horan agreed that such medication was proper, but he did not withdraw his petition to modify custody. Shortly after the petition was filed, the trial court directed Dr. Richard Lawlor to perform a full custody evaluation. Dr. Lawlor completed his evaluation on July 10, 2003, and completed an updated evaluation on May 7, 2004. Dr. Lawlor recommended that Z.T.H. remain in the Ketners' custody. On August 30, 2004, after a hearing on the matter, the trial court entered extensive findings of fact and conclusions thereon granting Horan's petition and awarding him custody of Z.T.H. On September 29, 2004, the Ketners filed a motion to correct error, which the trial court denied after hearing arguments on the issues raised in the motion. The Ketners now appeal the granting of Horan's petition to modify custody. Analysis 3 Horan requested findings of fact and conclusions thereon. In reviewing findings made pursuant to Indiana Trial Rule 52(A), we first determine whether the evidence

Horan and the trial court used the terms burden of proof and standard of review interchangeably. The burden of proof, however, is "[a] party's duty to prove a disputed assertion or charge." Black's Law Dictionary 190 (7th ed. 1999). The standard of review, on the other hand, is more accurately described as the amount of deference an appellate court gives to the trial court's decision.

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supports the findings and then whether the findings support the judgment. Borth v. Borth, 806 N.E.2d 866, 869 (Ind. Ct. App. 2004). On appeal, we may "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 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. "While findings of fact are reviewed under the clearly erroneous standard, appellate courts do not defer to conclusions of law, which are reviewed de novo." Id. In cases where mixed issues of fact and law are presented we have described the standard of review as an abuse of discretion. Id. A finding or conclusion is clearly erroneous when a review of the evidence leaves us with the firm conviction that a mistake has been made. Id. I. Framework for Modification of Third Party Custody The Ketners contend that the trial court improperly required them to rebut the presumption favoring custody with Horan, as Z.T.H.'s father, when it was Horan who was seeking to modify the custody arrangement that had been effect for almost ten years. They assert that Horan was instead required to show a substantial change in circumstances and that the modification of custody was in Z.T.H.'s best interests. Both parties and the trial court frame this issue as an either/or question

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