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While a mother cannot relocate to Utah with her child, the trial court erred in awarding primary physical custody of the child to the father, the Court of Appeals of Indiana ruled Thursday, penning a rebuke of the trial judge’s commentary.
Brittney Kozenko and Isaac Diaz had a child in 2021, and they co-parented until March 2022.
After their relationship ended, Kozenko obtained a protective order against Diaz.
In April 2022, Kozenko filed a verified petition to establish paternity, custody, child support and visitation. The Carroll Circuit Court appointed a guardian ad litem to the case.
The next month, Kozenko and Diaz entered into an agreed order that established Diaz’s parenting time schedule with the child for the month of June.
Also at that time, Kozenko accepted a position with Utah-based DFS Gourmet Specialties Inc. that allowed her to work remotely from her home in Indiana. DFS indicated it would hold an in-house position for her at their offices in Salt Lake City through the end of 2022.
Thus, Kozenko filed her notice of intent to relocate with the child to Lehi, Utah. Diaz objected, but the GAL recommended that Kozenko be allowed to relocate with the child, along with being awarded primary physical custody.
During the final hearing, “the trial court periodically interrupted Parents’ respective counsel and questioned both Mother and Father as they testified,” the Court of Appeals noted.
The trial court ultimately issued a nine-page order finding, in part, that Kozenko’s request to relocate was in good faith and for a legitimate reason. However, the court denied the relocation request based on a best-interests determination.
The parties were awarded joint legal custody, while Diaz was given primary physical custody.
Kozenko filed a motion to correct error challenging the trial court’s grant of primary physical custody to Diaz that appeared to be based upon the court’s finding that she no longer lived in Indiana. Diaz filed a motion to dismiss Kozenko’s motion.
Kozenko then filed a motion to stay the trial court’s final order, and Diaz filed a motion in opposition.
The trial court never ruled on the pleadings.
Kozenko appealed, first arguing there was insufficient evidence to support the trial court’s determination that relocation was not in the child’s best interests.
“The trial court’s order reveals that in reaching its determination, the trial court carefully and properly applied the facts of this case to the relevant statutory factors listed in INDIANA CODE § 31-17-2.2-1(c), and also — contrary to Mother’s argument — to the other factors listed in INDIANA CODE § 31-17-2-8,” Judge Rudolph Pyle wrote in rejecting Kozenko’s argument.
However, the COA also determined the trial court erred in awarding primary physical custody to Diaz.
“Rather than considering all the required relevant factors, the trial court appears to have considered only some of the factors and then based its custody determination almost entirely on a finding that Mother was no longer living in Indiana — specifically, ‘[a]s Mother is no longer present in the state where the child resides, Father is vested with primary physical custody of [Child],’” Pyle wrote. “However, no evidence was presented to show that Mother had personally relocated to Utah. Therefore, this finding is clearly erroneous.
“… The trial court should have considered all of the relevant factors listed in INDIANA CODE § 31-14-13-2 — plus any other relevant considerations — from the time of Child’s birth in making an award of physical custody,” he continued. “… By relying on only some of the factors and basing its custody determination largely on a finding that was unsupported by the evidence, we find that the trial court abused its discretion.”
The COA thus reversed the trial court’s award of primary physical custody to Diaz and remanded with instructions to enter a physical custody order that reflects consideration of all factors concerning the child’s best interests and provides proper findings supported by the evidence, as well as additional findings that better articulate its physical custody determination.
“Furthermore, we do not condone the trial court’s manner of inquiry, remarks, and on-the-record musings regarding Mother’s decision to remain in Indiana with Child and file her paternity action in, and seek a protective order from, the Indiana courts,” Pyle added. “The trial court’s prolonged thinking-out-loud comments along those lines were inappropriate.”
Judges Nancy Vaidik and Paul Mathias concurred in In Re: The Paternity of V.D.; Brittney Kozenko (Mother) v. Isaac Diaz (Father), 23A-JP-688.
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