Wrongfully Withholding Parenting Time From the Other, Not Basis For Child Custody Modification

Family Law Case Review

Case: Carl Wayne Montgomery v. Patricia Ann Montgomery
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court’s modification of child custody was reversed where, despite the discretion afforded a trial court in such situations, the evidence did not support the modification.

HELD: One parent wrongfully withholding parenting time from the other is not, without more, a basis for a modification of child custody.

Mother and Father divorced in 2009, with a young Child.

Mother later moved to Wisconsin and began living with Boyfriend. An agreed entry provided for Father to retain primary custody of Child, subject to Mother’s “distance as a factor” parenting time schedule.

Boyfriend had at least two prior battery convictions, and Father became concerned about Child spending time at Mother’s residence. Father moved to modify Mother’s parenting time, which included an allegation of Boyfriend striking Child. A GAL recommended that Boyfriend not be present during Mother’s parenting time. However, the trial court ruled that Mother, who denied any abuse, could continue to exercise her parenting time without any restrictions on Boyfriend.

In 2014, Mother filed a petition to modify custody to her. After a hearing, Mother’s petition was granted. Father appealed.

The Court of Appeals noted the deferential review of a custody modification. However, here it found that there was no evidence presented of a substantial change in any of the statutory factors for determining custody. The trial court’s rationale for modifying custody included that Father had wrongly withheld some parenting time from Mother. The trial court also found that the allegations made against Boyfriend were fabricated by Father. However, the Court concluded that these findings, even if supported by the evidence, did not constitute a substantial change in any of the statutory factors required to modify custody.

Beyond the “substantial change” issue, the Court of Appeals further questioned how a change of custody would serve Child’s best interests. There was uncontroverted evidence presented at the hearing that Child was well-cared for, well-adjusted, and doing well in Father’s custody. The GAL had also recommended that Father retain custody.

The Court reversed the custody modification order, and remanded the matter for a change of legal custody and primary physical custody to Father, subject to Mother’s parenting time per the IPTG.

To view the text of this opinion in its entirety, click here: Carl Wayne Montgomery v. Patricia Ann Montgomery


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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