Another Indiana Court of Appeals case from July 9, 2009, Paternity of M.P.M.W.; A.W. v. Z.B. . Those who think fathers do not get custody of their children in Indiana need to pay attention here.
The Court of Appeals summarized the case thus (page 2):
In January 2007, Father filed a motion for contempt and petition for change of custody against Mother because she had withheld visitation rights. Father then filed another motion for contempt, and the trial court issued an order, finding Mother in contempt, issuing a writ for her arrest, and taking sentencing under advisement until Mother appeared in court. Father was also awarded sole custody with no visitation granted for Mother. In July 2007, the writ was served, and Mother was taken into in custody. Father filed a petition for change of custody, and after Mother was released from custody, she was allowed to have supervised visitation with M.P.M.W.
Mother's argument was this (page 4):
Mother argues that the trial court erred when it modified custody to award Father sole physical custody of M.P.M.W. She specifically contends that the trial court erred because it based its decision to modify custody “in substantial part upon the premise of punishing [Mother] for absconding with the parties‟ child to the State of Michigan.” Appellant’s Br. at 17. To support her contention, she cites to language used by the trial court in its order, where it stated that Mother‟s contempt sentence was only suspended due in part to fact that she “was indirectly punished for her actions since the court suspended her visitation for a significant period of time” when M.P.M.W. was returned to Indiana. Id. (quoting Appellant’s App. at 37). She also cites to language where the trial court cautioned Father that he risked having his visitation or custody suspended, as Mother had, for violating the court‟s order. Id. Further, Mother points to language that refers to her suspended contempt sentence and the trial court‟s ability to punish her if she absconds with the child again. Id. at 18.
The Court of Appeals noted that mere lack of cooperation is not enough to meet the best interests of the child standard. Then the Court of Appeals went onto point how wrong was mother's argument (page 5):
Here, although the trial court did include language regarding punishing Mother for violating the trial court‟s previous order and absconding the state with M.P.M.W., it also noted the following factors that led to its decision that a substantial change in circumstances had occurred and that it was in the best interest of M.P.M.W. that Father be awarded custody:The Mother absconded with the child to the State of Michigan and deprived the Father and their daughter of their relationship.
The Mother dyed the hair of her child while in Michigan presumably to avoid being found.
The Mother withdrew the child from daycare and didn't re-enroll the child while in Michigan.
The Mother skipped a dentist appointment by going to Michigan.
The child‟s teeth were in an extremely deplorable condition when this took place and later the child had to have oral surgery due to the condition of her teeth. The court attributes the child‟s dental problems, in part, to the neglect of the Mother. The child confirmed this when speaking with the court by indicating and demonstrating that she would eat handfuls of sugar at a time and rarely brushed her teeth while at the Mother‟s home.
The Mother has reported the Father to Child Protective Services on more than one occasion without merit and as the court previously ruled this includes the allegation whereby the Father was watching an X-rated [movie] while in bed with the child. Again, the child confirmed to the court that this was a lie. The manner in which the child did this, by walking over to the judge and cupping her mouth and whispering that she lied added credibility to this statement.
The child‟s immunizations were not kept up to date by the Mother.
Appellant’s App. at 38-39. We therefore conclude that the trial court based its decision on proper considerations, and it did not err in its decision to modify custody to Father.
As for the contempt, I think the trial court overreacted to mother's absconding to Michigan and the Court of Appeals provides an answer to a question that I hope never comes up again. (Although it has before in MacIntosh v. MacIntosh, 749 N.E.2d 626 (Ind. Ct. App. 2001), trans. denied, and with which this panel disagrees with). See, the trial court entered a suspended sentence of two years for mother's contempt so long as she complied with the court's future orders.
The Court of Appeals reviewed the general rules for contempt. (Page 6-7). That contempt exists to enforce compliance with its orders, indirect civil contempt's purpose is not to punish, and imprisonment is for coercing compliance. Usually, a contempt order suspending imprisonment so long as the party obeys future orders will be upheld on appeal. So far so good, but the Court of Appeals makes clear - in my opinion - what is wrong with a two year suspended sentence (at page 8 and with a footnote omitted).
We recognize that a suspended sentence conditioned on adhering to the trial court‟s orders has generally been held a proper remedial contempt sanction, but believe that the two-year suspended sentence here was punitive. The majority of cases where a suspended sentence has been found to be a proper sanction for a civil contempt violation have involved shorter periods of imprisonment. Short periods of imprisonment may be coercive and remedial in nature, but the two-year sentence in the present case, which falls within the sentencing range for a Class C felony, went beyond coercing action of a party and became punitive. Further, Mother‟s sentence did not offer an opportunity for her to purge herself of the contempt. Unlike a contempt sanction conditioned on the payment of money or the accomplishment of a single task, this contempt sentence here cannot be purged....
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