Monday, April 13, 2009

New Indiana Supreme Court Case: modification of a third party custody order

In Re the Matter of the Paternity of K.I. part two. Part one dealt with grandparent visitation.

The Indiana Supreme Court makes clear that the presumption of parents over third parties remains intact in modifications of third party custody orders. Specifically disapproved was the burden shifting of In re Paternity of Z.T.H., 839 N.E.2d 246 (Ind. Ct. App. 2005), trans. not sought. (slip opinion at 8). The third party retains the burden of proof.

At page 10 of the opinion, the Indiana Supreme Court sets out the procedure to be used when modifying a third party custody order:

...In essence, although in a very technical sense, a natural parent seeking to modify custody has the burden of establishing the statutory requirements for modification by showing modification is in the child‟s best interest, and that there has been a substantial change in one or more of the enumerated factors, as a practical matter this is no burden at all. More precisely, the burden is minimal. Once this minimal burden is met, the third party must prove by clear and convincing evidence “that the child‟s best interests are substantially and significantly served by placement with another person.” B.H., 770 N.E.2d at 287. If the third party carries this burden, then custody of the child remains in the third party. Otherwise, custody must be modified in favor of the child‟s natural parent. In this case, because J.I. failed to carry her burden, the trial court properly granted J.H.‟s petition to modify custody in J.H.‟s favor. On this point we affirm the judgment of the trial court.
I strongly suspect that the Supreme Court has too breezily assumed that proving modification by a change in one of the enumerated factors is no burden at all.

I am still bothered that the Indiana Supreme Court has not done much to fix the muddle of B.H. but this opinion reminds with some clarity and force that a presumption favors the natural parents:
We make the following observations. First, the trial court may certainly rely on factors other than those set forth in Hendrickson in determining whether a third party has overcome the parental presumption. See, e.g., B.H., 770 N.E.2d at 288 (noting the trial court “relied on many factors” in determining that stepfather rather than father should be appointed guardian of the children including among others the estranged relationship between the father and the children; father‟s lack of any significant interaction with the children for a number of years; father‟s failure to stay current in paying child support; and father‟s history of excessive drinking). However, that is not to say reliance on the Hendrickson factors is error. Rather, such factors may provide guidance for trial courts in making custody determinations. Second, J.I. does not direct our attention to any evidence in the record demonstrating she carried her burden of overcoming the “important and strong presumption” that K.I.‟s best interests are best served by placement with J.H., the child‟s natural parent. B.H., 770 N.E.2d at 287. J.I. was required to do so by clear and convincing evidence proving that K.I.‟s best interests are substantially and significantly served by placement with J.I. In essence it is presumed that it is in K.I.‟s best interest to be placed in the custody of her natural parent. J.I. had the burden to overcome that presumption and she failed in that effort.
While what overcomes the presumption may be muddled, that the burden of proof remains clear and convincing is definite.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

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