When it comes to matters of child custody, the wishes of the child – particularly that of a child over the age of 14 – are some of the main statutory factors the court will consider when modifications are requested.
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.
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. Call Toll Free 877-446-5294.
Andrick v. Andrick , April 29, 2016, Indiana Court of Appeals
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