This is not to say that Indiana child custody modifications are solely based upon a child’s wishes. In fact, courts have traditionally been hesitant to do so. However, they are an “important consideration,” per a recent decision of Andrick v. Andrick by the Indiana Court of Appeals.

Here, a father sought modification of a child custody agreement involving his teenage son, who was living with his ex-wife, her new fiance, and her fiance’s two children. Although the lower court denied the modification, the court of appeals remanded the case. While Father had requested reversal of the trial court’s ruling, the appellate court was “not prepared to go that far.” It noted there was evidence in the case that could arguably support a result in favor of the mother, but there were erroneous findings by the lower court on crucial issues. There were also repeated citation by the trial court of incorrect legal standards, and thus the appeals court lacked confidence in the accuracy of the lower court’s judgment.more

According to court records from this Indiana child custody case, the boy was born in 1999. Father is not his biological father, but he adopted him in 2004. He was with the boy’s mother for four years (married for two of those years) and their divorce was finalized in 2007. At that time, Father was given “reasonable” parenting time, but that increased substantially following a petition to modify in 2010. His overnight visitations increased to 150 nights a year.

Over the next few years, the child’s grades and school attendance slipped. There were a number of issues going on, first being his parents’ separation. Then, his grandfather (mother’s father) became seriously ill and his mother had to spend a significant amount of time caring for him. The boy also spent a great deal of time with his sick grandfather, which caused him to miss a lot of days in school. After his grandfather’s death, the boy’s mother moved in with another man who had two children the boy’s age. He reportedly fought a lot with one of them.

The boy began seeing a counselor at his father’s behest and told the counselor he wished to move in with his father. He told the counselor about a “loopy” friend of his mother’s who was often at the house and also mentioned the conflict with his mother’s fiance’s children (one of whom he would have non-physical fights with almost daily). A guardian ad litem noted that the home smelled like animal urine, which mother attributed to one of her fiance’s children not properly cleaning the cat litter, as was his responsibility. The guardian ad litem also noted mold in the basement of the house that made her sick.

The counselor diagnosed the boy with adjustment disorder, the onset of which occurred after his parents’ separation. Father sought another modification of custody, citing the boy’s desire to live with him.

But as the case wore on, the boy started to do better academically and expressed a desire to continue attending his current high school (which he would not be able to do while living with his father). The court conducted an in camera interview with the boy, but did not make the results of that interview part of the court record. Subsequently, the court denied Father’s motion for modification.

On appeal, Father took note of the fact that the trial court misstated a number of the guardian ad litem’s statements and mischaracterized the reports from the child’s counselor. Plus, there was evidence the child had more recently indicated a desire to live with his father, but that had been misstated by the court as well.

The appeals court remanded, finding that while modification may not be in order, it had concerns that the trial court had misstated several important facts in its decision.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Andrick v. Andrick , April 29, 2016, Indiana Court of Appeals

More Blog Entries:

Man Protests Child Support Order to Pay for Child Not His, April 13, 2016, Indiana Child Custody Lawyer Blog

This is true even when natural parents initiate an action to re-obtain custody of a child. In those situations, the burden of proof doesn’t automatically shift back to the parent. Instead, it’s always on the third party. Parents and third parties aren’t, as the courts have held, on a “level playing field” when it comes to custody. Parents will always have the upper hand.

However, this does not mean parents don’t lose these cases. In fact, it happens all the time and it’s often the result of being unprepared for hearings and trials – including failing to adhere to court recommendations and guidelines from previous hearings. more

A Hammond child custody attorney can help in these matters, whether it is guiding parents on the path toward regaining custody of their children, or helping third parties obtain or maintain custody where it is in the child’s best interests.

In the recent case of Nelson v. Nelson, before the Indiana Court of Appeals, a mother who signed over custody of her daughter to her mother and aunt sought to regain custody of the girl, now 8. However, the child’s grandmother and great-aunt argued the child would be better served remaining in their care. The court agreed, as did the Indiana Court of Appeals.

Mother pointed to the precedent set in the case of In re Guardianship of B.H., but the courts analyzed the totality of the circumstances in denying her request.

According to court records, the little girl was born in October 2006. At the time, her mother was unmarried and had a history of difficulty with drugs and the criminal justice system. The girl spent all but eight months of her life living with her maternal grandmother and great-aunt in adjoining apartments.

In 2012, when the girl was six-years-old, her grandmother and great-aunt filed for custody of the girl. At the final hearing, the girl’s mother testified she had no job, no earnings, no motor vehicle and a number of outstanding criminal issues, including a pending trial for possession of methamphetamine. The mother indicated she believed it was in the best interest of her daughter to be in the custody of her mother and aunt.

The girl’s father was neither present nor involved. Trial court grated that petition.

Fast-forward two years. The girls’ mother sought to terminate that custody order .She had since gotten married. She had twins. She was on probation for possession of methamphetamine, but she hadn’t tested positive for the drug. She completed substance abuse treatment. She got a job part-time at a hotel and was living in a one-bedroom apartment with her husband (not the father of the twins) and the babies. Her husband was also on probation for DUI.

Mother noted she had exercised her visitation with her daughter, which included nights and weekend visits every weekend or every other weekend.

Still, the girl’s grandmother and great-aunt did not agree with the mother’s assertion that it was in the girl’s best interest to be back in her custody. They believed the girl should stay with them.

Trial court denied mother’s petition, and appeals court affirmed. Ultimately, the courts found the third parties in this case proved the child’s best interests were substantially and significantly served by placement with them.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Nelson v. Nelson, Sept. 24, 2015, Indiana Court of Appeals

More Blog Entries:

Carie v. Carie – Division of Property and the “Marital Pot” in Indiana Divorce, Sept. 20, 2015, Hammond Child Custody Lawyer