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Can I File A Petition To Modify Child Custody Where Custody Is On Appeal?

Can I File A Petition To Modify Child Custody Where Custody Is On Appeal?

Yes. No. Maybe.

In Indiana, child custody is always modifiable, if modification is in the child’s best interests and there is a substantial change in one (1) or more factors1 the court can consider under the initial custody determination statute, namely (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 the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interests; (5) the child’s adjustment to the child’s home, school and 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 a child has been cared for by a de facto custodian, or (9) a designation in a power of attorney of the child’s parent or a person found to be the child’s de facto custodian.2 However, some courts take the position that a year should have passed before a parent seeks a child custody modification, much like a portion of the child support modification statute. That said, if custody has been determined and modified under these statutes and it is on appeal, can a person file a petition to modify child custody?

The issue here is once an appeal of a child custody decision is filed, the Court of Appeals acquires jurisdiction over the custody appeal on the date the Notice of Completion of Clerk’s Record is noted in the Chronological Case Summary.3 This means that the trial court lacks or is divested of jurisdiction. Thus, if the request to modify is in some way related to the pending appeal, it would likely require a motion to be filed in the Court of Appeals seeking a stay and remand of the case to the trial court. Certainly, an objection raising a lack of jurisdiction in the trial court is foreseeable. This stay may be denied.

Normally, this is not the case. This is perhaps best illustrated by an example. Suppose a father was awarded custody on divorce and the mother appealed. If after the Court of Appeals acquired jurisdiction over this custody decision, the mother was arrested for methamphetamine use and dealing, this would form a new basis for modification and you could have an appeal of the existing order being reviewed on appeal and, simultaneously, a modification case being heard in the trial court. This is because child custody is always modifiable to constantly allow the children’s best interests to be met. However, if the custody modification was denied by the trial court for some reason, the case pending on appeal when decided, would control. If custody was modified based on the subsequent modification petition, then the decision of the Court of Appeals would likely be moot no matter what it decided.

Ultimately, facts that impact what is in a child’s best interests and meeting the burden proof under the modification statute can sometimes happen quickly and appear to put a litigant in a position of not being able to move to modify custody based on some “smoking gun” event, such as the arrest used in the hypothetical situation used in this blog. However, while it may take coordination with both appellate and trial counsel (if they are different), the rules that govern appeals, trial practice, and custody matters always allow a child’s needs to be heard by a court and met. While this is highly technical and may meet various objections, skilled counsels can navigate these waters to help you address your children’s best interests and go back to court.

This blog was written by attorneys at Ciyou & Dixon, P.C. who handle domestic cases across in all ninety-two (92) counties in the state. The firm handles appeals of all types as well. This blog is written for general educational purposes only and is not intended as legal advice or a solicitation for services. It is an advertisement.


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Dixon & Moseley, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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Based in Indianapolis and founded in 1995, Dixon & Moseley, P.C. is a niche law firm focused on successfully dealing with the complexities of divorce, high-conflict child custody and family law. Known for their ability to solve extremely complex situations with high quality work and responsiveness, Dixon & Moseley, P.C. will guide you every step of the way. The family law attorneys at Dixon & Moseley, P.C. will help you precisely identify your objectives and the means to reach your desired result. Life is uncertain. Be certain of your counsel. Indianapolis Divorce Attorneys, Dixon & Moseley, P.C.

Indianapolis Divorce Attorneys, Dixon & Moseley, P.C. of Indianapolis, Indiana, offers legal services for Indianapolis, Zionsville, Noblesville, Carmel, Avon, Anderson, Danville, Greenwood, Brownsburg, Geist, Fortville, McCordsville, Muncie, Greenfield, Westfield, Fort Wayne, Fishers, Bloomington, Lafayette, Marion County, Hamilton County, Hendricks County, Allen County, Delaware County, Morgan County, Hendricks County, Boone County, Vigo County, Johnson County, Hancock County, and Tippecanoe County, Indiana.