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How to Modify Legal Custody

How to Modify Legal Custody

An observation Ciyou & Dixon, P.C. attorneys make is the nature, scope and complexity of facts that arise in child custody modification cases are often as diverse as the controlling statutes and case law. Thus, trial courts have wide latitude to decide these matters; subsequent modifications have a tendency to, or perception of, unsettling the child(ren) and are more difficult to accomplish than the original determination.

This dynamic is recognized by Indiana appellate courts, who support wide discretion to trial court’s decisions and, correspondingly, are unlikely to reverse.1 Insights and examples into the outer boundaries of this discretion are difficult to find, because statistically few cases are outright reversed on appeal–and even fewer are reported decisions.2

Therefore, in appellate cases with reversals of custody decisions, particularly in subsequent litigation (modification), a unique combination of fact and law exists that provides key understanding of both trial and appellate burdens. The Indiana Court of Appeals recently reversed a trial court’s decision to modify sole legal custody to joint legal custody, which is the source of this blog post.3

Although litigants, courts, and lawyers routinely discuss or address legal custody, the term “legal custody” is rarely defined or stated in terms of what it is or encompasses. In addition, in the not-to distant past, namely 1989, the Indiana Court of Appeals noted “[v]ery little law in Indiana has been decided concerning joint legal custody.”4

Broadly, legal custody and legal custody decisions are major decisions of life for a child, which may be made individually (by the parent with sole legal custody) or jointly (if there is joint legal custody). These include health, education, welfare, religion, and parenting styles (such as discipline) decisions.

Nevertheless, there are many decisions made within any one of these legal custody matters and terms that is more akin to a normal daily decision to be made by the parent who has physical possession (whether by physical custody or exercise of parenting time) of the child at the particular moment in time. An example would be if a child might be ill5 and should be kept out of school. This is likely an ordinary decision, about which parents might agree or disagree, but not a legal custody decision.

On the other hand, if the factual question is about which school a child will go to (public, parochial or private), that is a legal custody decision. Where parents have similar life views and truly support the child’s best interests, joint legal custody is likely not problematic. Moreover, even with sole or joint legal custody, if there is a significant dispute, it is likely the parties will resort to the court to decide. That is how the Indiana judiciary protects a child’s best interests.

That said, many parties who have joint legal custody, but who seek to modify physical custody or parenting time, also desire to modify legal custody. There are two (2) considerations to this matter, namely advancing and legal custody modification case with significant merit and chance of success.

The first is clearly understanding what constitutes legal custody and a proper dispute about it. The most acrimonious custody-parenting disputes often do not involve a legal custody dispute, as is borne out by the testimony and documents that typically makes up the evidence. Secondly, the parties must show a substantial change in circumstances and that a modification of sole legal to joint legal, or joint legal to sole legal, is in the child’s best interests.

The law is usually the best place to start; and there are three (3) statutes that must be considered in any legal custody modification. This is how the Court of Appeals analyzed the matter in the recent Miller/Carpenter case.6 The first statute to consider is the general custody modification statute, which applies to modifications of physical and legal custody.

Precisely, Indiana Code Section 31-17-2-21 states in relevant part:

(a) The court may not modify a child custody order unless: (1) the modification is in the best interests of the child; and there is a substantial change in one (2) or more of the factors that the court may consider under section 8 . . .of this chapter.
(b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.

For the most part, the factors set forth in section 8, which is Indiana Code Section 13-17-2-8, focus on physical custody, but nevertheless, must be considered by the trial court in considering any legal custody modification (joint/sole), 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: (A) the child’s parent or parents; (B) the child’s siblings; 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 . . . .

Finally, and to the third statute engaged with a legal custody modification, Indiana Code Section 31-17-2-15 contains factors that are pertinent specifically to joint legal custody, as follows:

(1) the fitness and suitability of each of the persons awarded joint custody;
(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
(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) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and (B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.

In practical application, the attorneys for the parties must put evidence about these factors into the record, which may be by their testimony and/or exhibits. The trial court then weighs this evidence to determine if there has been a substantial change and it is in the child’s best interests to modify legal custody.

This is far harder to establish than it appears. And the recent Miller/Carpenter case makes this point very well. In this case, the Father sought to modify sole legal custody from Mother to joint. The trial court did modify, but the Indiana Court of Appeals reversed, carefully sorting through self-serving facts and culling out the factual allegations as they actually impacted legal custody.

On the following facts, the Court found the modification to be made in error, namely the father did not demonstrate a substantial change:

# Father put into evidence that when he agreed to sole legal custody being with the mother at the time of divorce, he was more stable, had more child-rearing experience, and had a stronger bond with the children.

# Father stated he felt out of the loop on legal custody decisions, but acknowledged that he had access to the records on this matter and mother kept him informed by e-mails.

As a learning point in this blog post, it is readily apparent the reasons the Court of Appeals likely reversed on this evidence.

First, a trial court is typically not to consider in custody modification, the facts and circumstances that occurred before the last custody order, which would be all evidence of the father’s situation at the time of the divorce, the first type of evidence he put on.7 Second, the last evidence sounds as if it speaks to legal custody, but it does not, at least as to mother’s attempts to involve father.

Often the emotion from the divorce masks these differences, such distinctions the Court of Appeals noted and found insufficient.

Thus, custody modification, even legal custody, is almost as complex a determination as in the first circumstance and instance (the initial determination). However, successful legal custody modification cases may be litigated, so long as the parent can distill an actual set of relevant disputes about legal custody.

Ciyou & Dixon, P.C. advocates hope you find this blog post on modifying legal custody helpful in understanding what difficult and complex tasks attorney, litigants, and the courts face in custody cases. If so, this post has met its goal. Ciyou & Dixon, P.C. attorneys practice throughout the State. This blog post was written by attorney Bryan L. Ciyou, Ciyou & Dixon, P.C., whose advocates practice throughout the State of Indiana.

  1. Werner v. Werner, 946 N.E.2d 1233, 1244 (Ind.Ct.App.2011).
  2. Indiana Appellate Rule 65. Indiana appellate court’s issues two type of decisions. All are in writing, but those “For “Publication are deemed important enough to serve as guidance for future cases. Other cases are “Memorandum Decisions” and not to be relied upon.
  3. Miller v. Carpenter (Ind.Ct.App.2012) (2012 WL 1018717 (Ind.App.)).
  4. Walker v. Walker, 539 N.E.2d 509, 511 (Ind.Ct.App.1989).
  5. A pattern of keeping a child out of school, however, may well necessitate physical custody modification.
  6. A traditional way of arguing a case is to state the issue, the controlling law (the statutes governing legal custody), the factual-legal analysis, and a conclusion.
  7. Ind.Code § 31-17-2-21(c).

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