Trial Court Erred Modifying Custodial Arrangement Absent A Request From Either Parent

Case: Shelly Bailey v. Lance Bailey 
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erred when it modified the custodial arrangement to joint physical custody in the absence of a request from either parent to do so.

Mother and Father divorced in 2010, with two children. At the time of Decree, they were granted joint legal custody, with Mother having primary physical custody subject to Father’s age-appropriate parenting time schedule per the IPTG.

An extremely high-conflict relationship between Mother and Father followed. In early 2013, the trial court held a hearing on several pending motions: a contempt by Father against Mother for failing to pay a marital debt; a contempt by Father against Mother for denying Father’s parenting time; and a petition by Mother to restrict Father’s parenting time. At the end of the hearing, the trial court asked the attorneys: “do I have the ability to enter a Parallel Parenting Time Order based upon the pleadings that are before the Court?” Counsel for Mother responded in the affirmative.

After the hearing, the trial court denied all of the pending motions, but entered an order with sua sponte findings, concluding that Mother and Father “shall share joint physical and legal custody” of the children, providing for an alternating week parenting time schedule. Also, finding the parents to be “high conflict,” the trial court entered various provisions from the Parallel Parenting Time provisions of the newly-revised IPTG. Mother appealed.

The Court of Appeals reviewed the various procedural safeguards that govern modifications of custody. Generally, custody may be modified only when one party has filed a petition for modification, served notice of same on the other party, and a proper evidentiary hearing is held allowing both parties an opportunity to be heard. Finding this case did not comply with those safeguards, nor fit into any of the limited exceptions to the general rule, the trial court committed error.

The Court of Appeals also “emphatically” rejected Father’s argument that the order constituted only a modification of Father’s parenting time, not a change of custody. But the Court responded that an increase from the IPTG schedule, to equal time, constituted a “de facto modification of custody and requires compliance with the statutes governing custody modification.”

The trial court’s order was reversed.

Judge Baker dissented, concluding that the affirmation by Mother’s counsel that the trial court had the authority to issue a parallel parenting plan amount to consent that the trial court could issue the resulting order.

To view the text of this opinion in its entirety, click here: Shelly Bailey v. Lance Bailey


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