Everyone has heard of a “nightmare” child custody battle. Most other civil cases boil down to money. In some high conflict custody cases, the battle is about custody, joint custody, or additional parenting time beyond what is set forth in the Indiana Parenting Time Guidelines. This blog covers what courts consider in deciding physical custody and your options if you receive an unfavorable final order.
As a threshold matter, a litigant must understand how the Divorce Act directs judges to analyze and decide child custody in the children’s best interest. Specifically, the judge hearing the evidence is to determine what is in the children’s best interests by considering the follow statutory factors:
Sec. 8. The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following: (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 (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. (9) A designation in a power of attorney of: (A) the child’s parent; or (B) a person found to be a de facto custodian of the child.
The court can also consider any other evidence if it relates to or has probative value to the judge making a decision in child custody litigation in the child’s best interests. That said judges are not infallible. That is why every litigant has the right to appeal to the Indiana Court of Appeals.
This (an appeal) is the typical way a case proceeds (to the Court of Appeals) for a losing party. However, there is one additional potential remedy available to a litigant before taking an appeal. This is a Motion to Correct Error. Effectively with a Motion to Correct Error, you are asking the trial court to re-review your case and now decide it differently. Very few custody disputes obtain relief from Motions to Correct Errors. However, a skilled trial and/or appellate attorney can analyze your case to determine if a Motion to Correct Error is a logical legal step. And you do not have to pick one over the other. If you lose your Motion to Correct Error, you can still take your case to the Indiana Court of Appeals.
That said, there is downside to filing a Motion to Correct Error. While every litigant has the right to file a Motion to Correct Error, they are generally not advisable. In other words, this right does not mean it is right for your case. The tricky part with a Motion to Correct Error is timing. Specifically, if the trial court does not rule on your motion in timely matter, or take other action set forth in the rule, such as setting a hearing, your Motion to Correct Error is denied as a matter of law by the passage of time pursuant Indiana Rule of Trial Procedure 53.3:
“In the event a court fails for forty-five (45) days to set a Motion to Correct Errors for hearing, or fails to rule on a Motion to Correct within thirty (30) days after it was heard or forty-five days (45) days after it was filed, if not hearing is required, the pending Motion to Correct Error shall be deemed denied. Any appeal shall be initiated by filing the notice of appeal under Appellate Rule (9) within thirty (30) days after the Motion to Correct is deemed denied.”
Thus, each litigant and his/her counsel’s must keep track of when the time begins to run to file a Notice of Appeal. The trial court’s failure to rule or set a hearing does not attribute to the judge/court. Failure to then timely file a Notice of Appeal will forfeit your right to appeal.
Although rare, an aggrieved parent should, in conjunction with wise counsel, consider the option of accepting the decision and not filing a Motion to Correct Errors or taking an appeal. There are a myriad of tools now available to litigants to facility his/her parenting time and make decisions in more or less real time. A contempt for a parenting dispute, heard weeks down the road by the court, is a hallow victory because whether you prevail in a contempt proceed does not make up missed time.
The last choice is to take an appeal. On appeal, the stronger arguments for reversal are those as a matter of law. This means, for instance, if a judge orders a parent to pay child support based on overnight credits and provides him or her with a summer abatement of child support by fifty percent (50), this is an error of law and the Court of Appeals reviews it de novo, affording a trial court judge no discretion, and reverse. In addition, the Court of Appeals will reverse if, for instance, under federal law a pension cannot be marital property to be divided, is put into the martial pot and divided by the parties.1 These are the strongest agreements to make on appeal.
Nevertheless, the Court of Appeals will defer to a trial court in most situations because they are working with a cold record—they are not judging witnesses by body language and the like and defer to the trial court. However, if the Court of Appeals reverse a trial court decision on appeal it is firmly convinced a mistake was made. In addition, some issues may be a mixed question of fact and law. These, too, make stronger cases for appeal. Presupposing the trial counsel made a good record, cases do get reverses on the facts at time.
If you are not successful in the Court of Appeals, every litigant has the right to seek transfer to the Indiana Supreme Court. These are discretionary, and the Indiana Supreme Court does not have to take any case, except those set forth by statute or court rule. If you, with skilled appellate counsel, determines one of these factors applies, more consideration for transfer applies to you your case. The Indiana Supreme Court strongly considers granting transfer where you case is in:
(1) Conflict in Court of Appeals’ Decisions. The Court of Appeals has entered a decision in conflict with another decision of the Court of Appeals on the same important issue.
(2) Conflict with Supreme Court Decision. The Court of Appeals has entered a decision in conflict with a decision of the Supreme Court on an important issue.
(3) Conflict with Federal Appellate Decision. The Court of Appeals has decided an important federal question in a way that conflicts with a decision of the Supreme Court of the United States or a United States Court of Appeals.
(4) Undecided Question of Law. The Court of Appeals has decided an important question of law or a case of great public importance that has not been, but should be, decided by the Supreme Court.
(5) Precedent in Need of Reconsideration. The Court of Appeals has correctly followed ruling precedent of the Supreme Court but such precedent is erroneous or in need of clarification or modification in some specific respect.
(6) Significant Departure From Law or Practice. The Court of Appeals has so significantly departed from accepted law or practice or has sanctioned such a departure by a trial court or Administrative Agency as to warrant the exercise of Supreme Court jurisdiction.
Ultimately, the take- away from this blog post is you have several options/considerations if you do not prevail in your custody case. We hope this blog helps understand your rights if you do not prevail in your custody case in the trial court. Dixon & Moseley, P.C. advocates handle domestic cases of all types across the state, as well as appeals from domestic cases. This blog is written for general educational purposes. It is not legal advice or a solicitation for services. It is an advertisement.