In Re The Paternity of J.T. and I.T., Minor Children and In Re The Support of C.R.T., Minor Child R.A.P., Mother v. C.D.T., Father , 988 N.E.2d 398 ( 2013 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
STEPHAN A. KRAY TERRY K. HIESTAND
LaPorte, Indiana Hiestand Law Office
Chesterton, Indiana
May 24 2013, 9:45 am
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE PATERNITY OF )
J.T. and I.T., Minor Children, )
)
R.A.P., Mother, )
)
Appellant-Respondent, )
)
vs. ) No. 46A05-1210-JP-544
)
C.D.T., Father, )
)
Appellee-Petitioner, )
IN RE THE SUPPORT OF )
C.R.T., Minor Child, )
)
R.A.P., Mother, )
)
Appellee-Petitioner )
)
vs. )
)
C.D.T., Father, )
)
Appellant-Respondent. )
APPEAL FROM THE LAPORTE SUPERIOR COURT
The Honorable Steven King, Sr. Judge
Cause Nos. 46D02-1003-JP-23, 46D02-0210-DR-269
May 24, 2013
OPINION - FOR PUBLICATION
MAY, Judge
R.P. (Mother) appeals the order granting sole legal and physical custody of J.T., I.T.,
and Co.T. to C.T. (Father). Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
On April 14, 2010, the juvenile court entered an order establishing Father as father of
three children born to Mother: Co.T., born July 9, 2002; J.T., born March 4, 2004; and I.T.,
born February 24, 2008. That order also granted Father parenting time on a graduated scale,
beginning with weekly six hour visits every Saturday, then escalating over a period of ten
months to parenting time pursuant to the Indiana Parenting Time Guidelines. The court also
ordered Father to pay $80 a week in child support and an extra $15 per week to satisfy an
arrearage.
On July 30, 2010, and January 26, 2012, Father filed petitions to show cause, alleging
Mother was in contempt of the parenting time order. On April 5, 2012, Father again alleged
contempt, and petitioned for modification of custody. The juvenile court found Mother in
contempt for denying parenting time, ordered Mother to pay Father $963.05 for attorney fees,
and awarded Father immediate sole legal and physical custody of children.
DISCUSSION AND DECISION
When a party requests modification of custody, we review the court’s decision for an
abuse of discretion, because we give wide latitude to our trial court judges in family law
matters. Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App. 2010). A petitioner
seeking modification has the burden to demonstrate the existing custody arrangement needs
to be altered. Id. As we undertake our review, we neither reweigh the evidence nor assess
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witness credibility. Id. Rather, we consider only the evidence and inferences most favorable
to the trial court’s judgment. Id.
Our legislature has defined the circumstances under which a custody order may be
modified:
(a) The court may not modify a child custody order unless:
(1) the 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 8 and, if applicable, section 8.5 of
this chapter.
(b) In making its determination, the court shall consider the factors listed under
section 8 of this chapter.
Ind. Code § 31-17-2-21 (hereinafter “Section 21”). Section 21 requires a court to “consider
the factors listed under section 8 of this chapter,” but in ordering a modification of child
custody a trial court is not, absent a request by a party, required to make special findings
regarding the continuing and substantial changes in the parties’ circumstances. Clark v.
Clark, 404 N.E.2d 23, 35 (Ind. Ct. App. 1980).
The factors the court must consider under Ind. Code § 31-17-2-8 (hereinafter “Section
8”) include:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the child’s
wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s best
interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
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(C) 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 8.5(b) of this chapter.
Mother argues Father did not present evidence to prove a substantial change in any of the
circumstances listed under Section 8, and thus the juvenile court abused its discretion when it
granted Father sole legal and physical custody of children. We disagree.
The juvenile court found, in granting Father’s petition to modify custody:
3. Evidence established that on a continuing basis since the entry of this
court’s parenting time [visitation] orders on April 14, 2010, [Mother] has
engaged in a continuing pattern of denial of parenting time to [Father] with his
children. That pattern resulted in the filing of three separate contempt
petitions by [Father].
4. That pattern of behavior has been particularly pronounced and
egregious since December of 2011. Since December 1 of 2011 through the
date of hearing on July 11, 2012, the extent of parenting time permitted by
[Mother] with his three children was as follows:
a) A six-minute telephone conversation on Christmas Day, 2011;
b) eight minutes with the children outside [Mother’s] residence on
March 4, 2012, [J.T.’s] birthday; and
c) six minutes with the children outside [Mother’s residence] on
July 9, 2012, which was [Co.T.’s] birthday.
5. Stated otherwise, [Father] was denied parenting time on 31 separate
occasions, including half of the Christmas break in 2011, Father’s Day, 2012,
Independence Day, 2012, as well as any meaningful period between two of the
children’s birthdays.
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8. It has been established by a preponderance of the evidence that there
has been a substantial change in the interrelationship of [Mother] vis-à-vis
[Father], to wit: she so despises and distrusts him that she has exhausted her
limited coping skills and, as a result, acted in complete defiance of the existing
parenting time orders over an extended period of time. Her repetitive failure to
permit visitation is the product of a mindset not likely to change, given her
demeanor, testimony and past failure to honor her assurances – in the face of
prior contempt petitions – that she would abide by the parenting time order.
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9. As a consequence it is in the best interests of the three children that the
existing custody order be modified; otherwise, the children will be denied a
meaningful relationship with their father.
(App. at 10-11.)
Father presented evidence Mother routinely denied him the parenting time to which he
was entitled. This establishes a substantial change in the interrelationship of the parties,
which permits a modification in custody. See In re Marriage of Cain, 540 N.E.2d 77 (Ind.
Ct. App. 1989) (modification of custody affirmed based on breakdown of communication
and cooperation between the parties regarding parenting time). Accordingly, we affirm the
juvenile court’s decision to place the children with Father.
Affirmed.
BAKER, J., and MATHIAS, J., concur.
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