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Family Law Case Updates

Romero v. McVey (April 8, 2021)

HELD: Trial court erred when it denied grandparents request for visitation rights, apparently based upon an optimism that such visitation could be arranged informally and without a court order.

FACTS AND PROCEDURAL HISTORY:

Child was born to parents who had complicated legal and substance abuse problems, and Child was immediately placed in the care of Child’s maternal aunt (“Aunt”). Aunt began the process of initiating an adoption of Child.

A week after Child’s birth, DCS initiated a CHINS matter, citing Mother’s substance abuse. Mother was out of the picture thereafter, and Father was incarcerated.

Father’s mother and stepfather (“Grandparents”) filed a petition for grandparent visitation. While Grandparents were seeing Child regularly based upon an informal understanding they had with Aunt, Grandparents expressed concerned the opportunities to see Child might stop after the Aunt’s adoption of Child was finalized.

At a hearing of the matter, Aunt testified that she was supportive of Child’s relationship with Grandparents, and that she wished for it to continue. However, the trial court denied the petition for grandparent visitation, writing, in part, that “[n]o evidence has been presented suggesting that [Aunt] will restrict appropriate conduct with [Child’s] relatives post adoption.” Grandparents appealed.

The Court of Appeals noted the deference afforded to trial courts hearing family law matters. The Court noted that the Grandparents met the statutory criteria for seeking a grandparent visitation order and, importantly, that such an order must be established prior to an adoption for a grandparent to have guaranteed contact with the child post-adoption.

Evaluating the circumstances, the Court of Appeals concluded it was in Child’s best interests to have a grandparent visitation order, and that the trial court’s denial of same was clearly erroneous.

The denial of the Grandparents’ visitation petition was reversed and remanded for further proceedings to fashion a specific grandparent visitation order.

Faulk v. Bissell (March 29, 2021)

HELD: Trial court in divorce proceedings erred when its Decree ordered Child’s last name changed from “Faulk,” which was Father’s last name, to “Bissell-Faulk,” a hyphenated combination of the parents’ last names; however, the legal error was that the trial court lacked the statutory authority to order any change of Child’s name.

HELD: Trial court erred in its child support calculation when it declined to impute income to Mother due to her ability to live rent-free with her parents.

FACTS AND PROCEDURAL HISTORY:

Mother and Father married in 2017, at which time Mother changed her last name from Bissell to Father’s last name, Faulk. Mother became pregnant but filed a petition for dissolution of marriage prior to giving birth to Child. When Mother gave birth to Child, she signed a birth certificate that listed Child’s name as J.L. Bissell, rather than C.J. Faulk, as the parties had agreed previously.

At the final hearing of the divorce, Father asked that Child’s last name be changed to Faulk, whereas Mother requested that it either be left Bissell, or changed to Bissell-Faulk. The trial court ordered Child’s name changed to Bissell-Faulk. Also, in its child support calculation, the trial court declined to impute income to Mother based upon her living rent-free with her parents, instead basing Mother’s income for support purposes solely on her earned income as a school teacher.

Father appealed.

The Court of Appeals concluded that the trial court had no statutory authority to change Child’s name. The only marriage dissolution statute that authorizes a name change is that of a wife’s name being restored to her maiden name. The Court noted that there is an Indiana statute that permits parents or guardians to change the name of a child, but none of that statute’s provisions or requirements had been followed in this case. Therefore, the trial court’s name change was reversed.

On the issue of Mother’s income imputation, evidence was presented that Mother lives rent-free with her parents. Mother estimated that an apartment would cost her about $1,000 per month. Noting the Indiana Supreme Court’s 1999 Glass v. Oeder case, which affirmed an imputation to a father for his rent-free residence, the Court of Appeals reversed the trial court’s child support calculation, remanding the issue for inclusion of the value of Mother’s living arrangements to be included in Mother’s income for the child support calculation.

Two other appellate issues raised by Father were rejected by the Court. The trial court’s Decree included an annual child support true-up to address Father’s potential for irregular income as set forth in the Guidelines. The Court of Appeals affirmed the true-up provision.

Second, the trial court’s Decree awarded Mother primary physical custody, subject to Father’s IPTG parenting time. However, as to the “opportunity for additional parenting time,” the Decree added some terms and conditions regarding notice and logistical considerations that do not appear in the IPTG. The Court of Appeals did not consider these additional terms to be an abuse of discretion.

The Court ordered the provision of the Decree that changed Child’s name reversed and remanded with instructions to vacate the name change order.

Judge Riley dissented on the name change issue. She believed that the name change was presented to the trial court as part of the miscellaneous incidents of resolving the dissolution of the marriage, and Mother did not object to proceeding in that manner. Judge Riley would have then applied a “best interests of the child” standard to a prospective name change, under which she expressed concerns that a hyphenated name would leave child with a different last name than either of her parents, or any of Child’s siblings. She concluded the trial court had authority to change Child’s name under the circumstances of the case, but that changing it to a hyphenated name was an abuse of discretion.

In re: the Paternity of B.R.H. (March 26, 2021) (Relocation Case)

HELD: Trial court’s order denying Mother’s request to relocate with Child to New Mexico was affirmed. While Mother’s proposed relocation was made in good faith, the relocation was not in Child’s best interests.

FACTS AND PROCEDURAL HISTORY:

Mother and Father had a relationship in 2015 that resulted in the birth of Child in 2016. Father filed a petition to establish paternity that resulted in an agreed entry that did so, as well as provided for the parties to share joint legal custody of Child, with Mother’s primary physical custody subject to Father’s IPTG parenting time.

In 2018, Mother filed a petition to relocate to Texas with Child. In support, Mother asserted that she was offered employment there with a hospital as a registered dietician, and that the Texas job was her only offer of employment after a job search. Father responded with a petition to modify custody to him.

Following a hearing in 2018, the trial court granted Mother’s petition to relocate and denied Father’s petition to modify custody. However, Mother’s job opportunity in Texas did fell through, and she did not move.

Mother subsequently met and married a man living in Clovis, New Mexico, and she filed a petition to relocate there. That petition and Father’s response to it were heard by the trial court over several days. While the trial court concluded that Mother’s desire to relocate was in good faith (to be with her husband), it was not in Child’s best interests to be relocated from Dubois County to New Mexico. Mother’s petition to relocate with Child was denied. Mother appealed.

The Court of Appeals noted the deference that is afforded trial courts, particularly in family law matters. Reviewing the record, the Court concluded that the evidence supported the trial court’s findings that, while Mother’s proposed relocation was made in good faith, it was not in Child’s best interests to do so, particularly due to the impact a move of that great distance would have on Child’s relationship with Father, as well as all of the bonded relationships Child had established in Indiana.

The trial court’s order denying Mother’s proposed relocation was affirmed.