Denial of Mother’s Petition to Modify Custody Was Reversed

Case: In Re the Marriage of: Amy Steele-Giri v. Brian K. Steele
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: The denial of Mother’s petition to modify custody was reversed, with instructions to enter an order granting physical custody to Mother based upon the trial court record.

[Note: An interesting component of this decision, not central to the resolution of the case, appears in Footnote 1. Apparently, the parties had certain evidence sealed from public access at the trial court level. The Court of Appeals noted that there was not compliance with Administrative Rule 9, and further stated that “we have included a number of facts derived from the confidential records in this cause because ‘we deem such information to be public as essential to the resolution of the litigation and appropriate to further the establishment of precedent and the development of the law.’”  Apparently, the lesson is to think carefully about whether to appeal an opinion with sealed trial court records.]

FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced in 2007, and began sharing joint legal and physical custody of Child. In 2009, Mother contemplated moving to California so that her now-husband could pursue a position as a cardiologist. An agreed entry followed, giving Father primary physical custody subject to a “distance as a factor” schedule for Mother.

Mother subsequently moved to Oregon, had another child with her new husband, and was a stay-at-home mother. Meanwhile, back in Indiana, Father changed jobs, remarried, and the couple’s work schedule required Child to be enrolled in before- and after-school care programs. Father did not share these arrangements with Mother.

After starting kindergarten, Child experienced a series of academic struggles which Father also did not share with Mother.

In 2013, Mother filed a petition to modify custody.  A subsequent GAL report noted that Child’s life might be easier and better with Mother in Oregon, and perhaps a trial relocation would be worth pursuing. But, ultimately, the GAL made “no formal recommendation.” 

After a hearing, Mother’s petition to modify was denied, from which Mother appeals.

Reviewing the evidence, the Court of Appeals agreed with Mother that there was significant evidence in support of her petition to modify: conflict and problems between Child and the children of Father’s new wife; Child’s academic struggles; the amount of time Child spends in third-party care before and after school; and Father’s non-communication with Mother about issues related to Child. Concluding that custody should have been modified, the Court of Appeals granted primary physical custody to Mother, and remanded to the trial court to determine whether joint legal custody continues to be in Child’s best interests and to establish a parenting time schedule for Father.

Judge Barnes dissented, arguing that the evidence in favor of modification was not strong enough to overcome the required deference to the trial court’s assessment of the evidence.

To view the text of this opinion in its entirety, click here: In Re the Marriage of: Amy Steele-Giri v. Brian K. Steele

 

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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