Making the Factual Showings in Custody Modification
Almost every two people hear about a situation and come up with a different opinion. This is because second hand reporting removes the context and non-verbal communication that may be present, such as grimaces, winces, and other body language.
Because of this, the Indiana Court of Appeals and Indiana Supreme Court give great deference to trial court judges in custody modification cases. In cases where there is a pure factual dispute, and no question of the application of the law (such as is this the first custody decision or a modification), it is crucial litigants work with their attorneys to develop their case distinctions and make them clear in the evidence presented to trial courts.
In a very recent case, the Indiana Supreme Court, which rarely takes custody cases where facts are the key dispute, this Court made that point. In deciding the case, the trail court found that “fighting” between step-sisters was just normal “sibling rivalry.” The Court of Appeals disagreed and reversed.
On appeal to the Indiana Court of Appeals, the only Court where a divorce litigant can ordinarily take an appeal by right, the Court of Appeals reversed and found these were “fights” and consistent with custody modification of her child, reversing the trial court’s denial of custody modification.
However, based on the record (transcript and exhibits), the Indiana Supreme Court, when it accepted and decided the case, found the record could support either conclusion by a judge and reversed1 the Court of Appeals and reinstated the trial court’s denial of Mother’s custody modification petition (for her to have custody).
This case demonstrates three key points dictated by Indiana’s highest court. First, make sure subtle differences like this are fully developed in the evidence. This takes preparation before trial with your attorney and making him or her aware of the detailed facts. There are a number of legal tools to do so, such as a GAL or custody evaluation.
Second, remember the place to make a factual case in dispute is normally in the trial court, not on appeal. Judges see all of the non-verbal communication and acts and omissions and reactions of a party that an appellate court cannot. This is why in watching a news story second hand reasonable people can differ. Indiana defers to trial judges to decide this.
Third, the best appeals are those based on question of law, or mixed questions of law and fact, not just factual disputes alone and disagreement with how the trial court decided the case. Thus, it is important to make your case with your attorney under the requisite standard, controlling law, and with the key facts and their distinctions.
This blog post was written to assist you in understanding the importance of preparing for a case, skilled counsel, and the role of Indiana’s courts in deciding cases. With children this is even more the case because trial courts look out for their best interests as entrusted to them by the Legislature and Indiana’s appellate court.
This blog was written by attorneys at Dixon & Moseley, P.C. who practice throughout the State of Indiana. We hope you find it helpful in understanding family law generally. It is not specific legal advice or a solicitation for representation. It is best thought of as an advertisement.