Auto Change in Custody from Mother to Father if Mother Moved with Minor Child Reversed

Case: Jacqueline Myers v. Mark Myers 
by Mike Kohlhaas, Bingham Greenebaum Doll  & Tamara McMillian, Bingham Greenebaum Doll

HELD: The trial court’s ruling dismissing Mother’s motion for relocation was AFFIRMED because Mother failed to rebut the presumption that the child was of the marriage and she did not present a good faith basis for the relocation. Further, the parties’ actions post-dissolution supported the trial court’s conclusion that minor child was of the marriage.

HELD: The trial court’s order for an automatic change of custody from Mother to Father if Mother moved to Texas with minor child was REVERSED because this future condition violated Indiana’s modification statute.

Mother and Father married in 2006. They had six children together. During the marriage, the youngest daughter was conceived from Mother’s affair while she was in Paraguay without Father. Although Father learned of Mother’s affair, he signed the birth certificate and acted as the minor child’s parent. Father and Mother divorced in 2012. Post-dissolution, Father exercised regular parenting time without any objection from Mother. The parties’ Decree of Dissolution was contradictory because although the decree questioned the paternity of the minor child, it awarded parenting time to Father. This court reasoned that the trial court would not have had the authority to grant Father parenting time if the minor was not a child of the marriage.

In 2012, Father filed a motion to modify custody and child support. The trial court appointed a guardian ad litem (GAL) to represent minor child. The court granted Father a modification for the minor son but excluded the daughter at issue here.  Later in 2012, Mother filed a notice of intent to relocate to Texas with the daughter out of concern for Mother’s financial challenges in Indiana. Father and GAL objected. During the hearing Mother testified that she wanted to relocate to Texas for financial reasons. Mother stated that she was unable to pay her Indiana expenses and that she could live rent free in Texas. However, Mother testified that her salary in Texas was identical to what she earned in Indiana. The parties’ daughter was a teenager with extra-curricular activities and paternal family in Indiana but no friends or connections in Texas.  The trial court dismissed mother’s motion to relocate to Texas with minor child. It further ordered physical custody to automatically change from Mother to Father if Mother later moved to Texas.

On the issue of paternity and relocation, the Court of Appeals supported the trial court’s finding barring Mother’s relocation to Texas with the child. The Court of Appeals, however, rejected the trial’s court automatic custody order. The Court of Appeals noted that Mother did not rebut the presumption that minor child was of the marriage, she failed to demonstrate a good faith basis for locating the child to Texas and it was not in the child’s best interest to relocate to Texas.  The court’s conclusion was supported by Mother and Father’s post-dissolution behavior, namely Father’s regular parenting time and Mother not objecting to Father’s time with the child.  The doctrine of laches also prevented Mother from raising the issue of the child’s paternity.

Regarding the trial court’s order for an automatic transfer of custody if Mother relocated to Texas, the Court of Appeals rejected this future condition as improper under the Indiana modification stature. The trial court could have included language that Mother’s present custody award was conditioned upon her remaining in Indiana with the child.

The trial court’s relocation judgment was affirmed. The Court of Appeals reversed and remanded the trial court’s automatic change of custody order.

To view the text of this opinion in its entirety, click here: Jacqueline Myers v. Mark Myers


The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.
ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Amateur Life Coach Discusses Employee Morale

Amateur Life Coach Discusses Employee Morale

James J. Bell, ICLEF's Amateur Life Coach

Originally posted May 2014

The Amateur Life Coach (also known as attorney James J. Bell of Bingham Greenebaum Doll) is back to dispense his unique thoughts, advice and wisdom to his real and imagined viewers…

This week our question comes from Indianapolis attorney Adam Christensen regarding whether allowing casual attire improves office morale.

Now, you can also “like” the Amateur Life Coach at Facebook!  Visit his facebook account today and catch up on his day-to-day activities.

More from James Bell on professional liability and legal ethics issues can be found in his “3 Things to Know” column appearing regularly in the Indiana Lawyer. Visit

Questions for the Amateur Life Coach?  Email them to or @JamesJBell on Twitter.

Written and performed by James J. Bell. Produced by the Indiana Continuing Legal Education Forum.
This video is for informational purposes only and should not be used as a substitute for professional advice.


James focuses his practice in the areas of criminal defense; attorney discipline defense and health care law. As a Marion County Public Defender, he represented clients in numerous jury and bench trials. James also represents clients in juvenile delinquency, appeals and post-conviction proceedings. James is a frequent ICLEF speaker on ethics, trial practice and criminal procedure. James just completed his first semester as an adjunct professor at the Indiana University Robert H. McKinney School of Law where he teaches a course on professional responsibility. To date, no student has yet stood on their desk and shouted “Oh captain, my captain!” Follow James on Twitter @jamesjbell

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN


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Family Law Case Review: Grandparents Visitation Order Reversed

Case: In re: The Grandparent Visitation of C.S.N.: Brooke Neuhoff v. Scott A. Ubelhor and Angela S. Ubelhor
by Mike Kohlhaas, Bingham Greenebaum Doll

[Full disclosure: I participated in the representation of the Appellant in this appeal.]

HELD: Trial court erred when it issued a visitation order in favor of Grandparents.

Mother became pregnant in high school. Weeks before her delivery, Father committed suicide. In 2010, paternity was established by way of an agreed entry between Mother and the paternal Grandparents. Child was born on June 17, 2010.

Mother eventually returned to high school, and graduated with a 3.9/4.0 GPA. She later enrolled at the University of Southern Indiana to study accounting, while working part time in the accounting department of a large local company.

Following Father’s death and Child’s birth, Mother maintained a close relationship with Grandparents. Mother included Grandparents at Child’s birth, baptism, birthday parties, holidays, and other family events. Mother also took Child to Grandparents’ home nearly every Sunday. While Mother would sometimes leave Child with Grandparents for several hours, Mother did not allow any overnights.

In February 2013, Grandparents filed a petition for grandparent visitation, in part because they were seeking overnights and in part because of a stated concern that Mother might reduce or eliminate their access to Child. Initially, Mother continued her Sunday visits to Grandparents’ house after the petition was filed.

Within weeks, Mother began to notice behavior issues with Child after he spent time with Grandparents (e.g., potty training accidents, crying, etc.). After one visit, Mother noticed unexplained bruises on Child’s back. Mother elected to discontinue Child’s visits with Grandparents.

Following an evidentiary hearing, the trial court issued a grandparent visitation order. The order provided for a six-week phase-in that would reach a final visitation schedule of every other Sunday from 10 A.M. to 6 P.M.. No overnights were provided for in the order. Mother appealed.

The Court of Appeals reviewed Troxel and similar Indiana cases dealing with the constitutional aspect of grandparent visitation orders, as well as the resulting four “McCune factors” that must be considered by a trial court prior to ordering grandparent visitation. Applying the McCune factors to the record, the Court of Appeals concluded that Mother’s decision to restrict visitation was not unreasonable, and that the trial court’s finding to the contrary was unsupported. The Court of Appeals also concluded that the trial court gave no weight to the McCune factor that Mother had been providing for some visitation and, thus, the grandparent visitation order was not necessary for Grandparents to have any time with Child; there is an important difference between a parent who limits grandparents’ opportunities to visit with a child, and those who deny it entirely.

The trial court’s grandparent visitation order was reversed.

Chief Judge Vaidik dissented with a separate opinion. She believed that the circumstances surrounding Mother’s decision to stop the visits with Grandparents were such that it was within the trial court’s discretion to conclude that Mother had acted unreasonably because the evidence did not establish a clear nexus between Child’s behavioral issues and bruises with any wrongdoing by the Grandparents.

To view the text of this opinion in its entirety, click here: In re: The Grandparent Visitation of C.S.N.: Brooke Neuhoff v. Scott A. Ubelhor and Angela S. Ubelhor


The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.
ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review, News0 Comments

Negotiation lessons to put into practice

By Marty Latz, Latz Negotiation Institute

I recently concluded a few negotiations – business and personal – and learned and confirmed some things that have universal applicability to many negotiations. I have added these to my personal list of negotiation lessons learned so they are front and center for me in future negotiations. You might add them to yours, too.

Maintain focus on your primary goal.

Our current roof lasted 21 years – and we needed a new roof. So we got some roofer recommendations and met with three who bid.

One was particularly impressive. He really knew his stuff and was intensely focused on quality, details and customer service. And his bid, while not the lowest, was reasonable based on our market research.

So I asked him to send me his standard agreement so we could get him scheduled soon, as he was extremely busy. After looking over his one-page agreement, which I suspect he had been using for years, I asked him if I could make some revisions to better protect us both. He seemed fine with this.

Now, keep in mind that I am a lawyer, as is my wife, and he knew this. So I sent him a revised agreement with some slight modifications, mostly technical. I next received a voice mail from him stating he thought we should find a different roofer.

I was very surprised. So, after discussing this with my wife (who was upset at me, as she just wanted our roof replaced before it rained again), I called him back to explore his concerns. Bottom line: He just wasn’t comfortable with any changes.

Since none was a deal-breaker, I signed his agreement. And we got a great new roof.

My lesson? Keep your eyes on your primary goal. The revisions were minor, but our selection of the roofer was not.

Almost all rules have exceptions.

A consulting client was recently in the midst of a negotiation with a nationally prominent attorney when we unexpectedly received a “best and final offer.” In most negotiations, using this specific language signals there will be no more offers coming from that party.

Based on this norm and this attorney’s reputation – which was great and one with a lot of credibility – it seemed like the end of the line. It was not. Instead, my client countered and asked for one more move. Unexpectedly, we got one. And while it was not a huge move, it was significant.

The lessons? One, it doesn’t cost anything to ask. And two, even seemingly sacrosanct rules sometimes have exceptions.

By the way, our counterpart’s credibility has now taken a hit, for obvious reasons.

The power of reciprocity and relationships

Our family has been thinking about building a new house for a while, and I don’t know how many times this custom homebuilder had come out to discuss our new house plans. But it was a lot. And it spanned five years. Each time, he was the consummate professional, exhibiting patience and helping us focus on our needs and interests. Importantly, he never asked to be paid for his time.

Finally, we were ready to move forward. But we just didn’t think it right to do what I recommend in many significant negotiations – strengthen our leverage, here by bidding it out to other builders.

Why not? We felt like we owed him for all the time he spent with us (the principle of reciprocity). Plus, we had developed a really good working relationship with him and would be working closely with him for months on the new house. Bidding out the contract at that point would have sent the wrong signal.

Bottom line: we wanted to hire him, and the money we might have saved with stronger leverage wasn’t worth the negative impact the bidding process would have had on our relationship.

Relationships matter.


Marty Latz will be part of this week’s Masters Series Conference in beautiful French Lick and West Baden, Indiana. There are a few spots left for his Advanced CLE Seminar, Negotiations Strategies within Mediation. To learn more, Click Here.


Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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