Ruling awarding dad joint custody tossed for lack of findings
The decision of a Marion County judge granting joint custody of a father was inadequate and was overturned on appeal Thursday.
The Indiana Court of Appeals overturned the joint custody order in MG v. SK et al. 20A-DR-712.
Judge Timothy Oakes granted father SK joint custody of the only child he had with mother MG in February. After the couple divorced in 2015, they agreed to share custody, with the mother having sole custody of her then 18-month-old child.
Father had completed anger management courses for alleged criminal imprisonment of the mother and switched from supervised parental leave to unsupervised parental leave with his child.
The father then applied for joint custody in 2019, and the mother applied for sole custody and the appointment of a guardian ad litem. “The GAL stated that it had no environmental problems with any of the parents’ homes. She shared the child therapist’s opinion that the child was connected to both parents. The GAL did not identify any concerns about the child’s academic progression, socialization, or health. She described Child as “happy with her schedule” and with no “desire to change”.
Nonetheless, the court ordered an amendment in which the child would switch between parental homes weekly. That order has been suspended pending appeal and the COA has been overturned due to a lack of findings and, in some cases, findings that were not supported by the records, such as the mother who enabled the child to become overweight.
“(D) The evidence did not show the child was overweight,” wrote Judge L. Mark Bailey. “The kid was in the 99th percentile for weight for his age, but he was also in the 99th percentile for height. The GAL denied that the child appeared to be overweight. Father admitted that he had not been medically advised to reduce the child’s weight; at most, he expressed concern about a family history of diabetes. Even so, there was no evidence that the mother’s behavior contributed to the father’s concern about the child’s weight.
“… ‘[T]The purpose of Rule 52 (A) is to provide the parties and the reviewing court with the theory that the trial judge will use to rule the case, so that the right to review for error may be effectively maintained. “Nunn Law Office v Rosenthal, 905 NE2d 513, 517 (Ind. Ct. App. 2009),” wrote Bailey. “Here the court made certain factual statements praising the father’s parental abilities and criticizing the mother’s inflexibility. However, the theory on which the change was based is not obvious, as it does not mention a substantial change in a legal factor or an explicit conclusion that a change is in the best interests of the child. In addition, the court did not make any specific determinations or conclusions on the mother’s request to convert joint custody of the child into sole custody of the mother.
“The court has not issued an order in accordance with Indiana Trial Rule 52 (A) sufficient to permit a meaningful appeals review,” the panel concluded.