COA affirms award of custody to non-surrogate mother, against father

A father fighting against the award of custody of his child to his ex-wife did not convince the Indiana Court of Appeals that a mistake had been made.

During their marriage, Coby Jent and Jerrilee Cave used a surrogate to become parents to their child, A.J. When the couple divorced, the parents sought to establish their respective custody and support rights and obligations in a paternity proceeding.

The paternity court ultimately found that it was in the child’s best interest to be in Cave’s custody, noting Jent had historically abdicated much of his parenting responsibilities to other individuals in the child’s life, principally to Cave. The Madison Circuit Court therefore ordered Jent to pay child support in the amount of $75 per week to Cave, as well as a $5,000 reimbursement to Cave for a family counselor.

The Indiana Court of Appeals affirmed that decision, rejecting Jent’s assertion on appeal that the trial court erred in granting custody to Cave.

Specifically, the appellate court declined to assess evidence on appeal differently than the trial court on Jent’s claim that because he is the only biological parent of the child in the lawsuit, Cave’s evidence could not overcome the legal presumption that he should have custody.

“The controlling factor in custody determinations is the best interests of the child,” Judge Edward Najam wrote for the appellate court, citing J.I. ex rel. K.I. v. J.H., 903 N.E.2d 435, 459-60 (Ind. 2009). The evidence most favorable to the trial court’s judgment supports its award of custody to Mother.”

To support its conclusion, the appellate court noted that in addition to routinely failing to put the child first, Jent interfered with and refused to recognize Cave’s role in the child’s life as her only known mother figure. It also noted Jent either passively or actively permitted the child to be instructed to levy “unfounded and harmful” accusations against Cave, including an accusation that she had threatened to kill the son of Jent’s current wife, among other things.

“Conversely, Mother is well bonded to the Child and vice versa; Mother has been engaged and active in the Child’s development; and awarding custody to Mother enabled the Child to maintain other important family relationships, especially with the paternal grandparents,” the appellate court wrote.

Additionally, the court estopped Jent from attempting to discount or disparage Cave’s relationship with the child because she was conceived through artificial insemination, citing Levin v. Levin, 645 N.E.2d 601, 604-05 (Ind. 1994).

The child was conceived through the use of a surrogate by agreement during Jent and Cave’s marriage, the appellate court noted. As such, it concluded Cave should not be required to adopt her daughter for her status as the child’s “mother” to be recognized.

The appellate panel further rejected Jent’s argument that the trial court erred in ordering him to pay child support, noting he presented no argument on appeal that the dissolution record was insufficient to demonstrate the parties’ respective incomes. It also found no abuse of discretion when the trial court declined to draw a more serious negative inference against Cave for her deletion of some Facebook posts that contained unkind commentary about Jent.

Lastly, the appellate court declined to change the trial court’s order that Cave not be required to pay all or any part of Jent’s attorney fees in the case of In Re the Paternity of A.J.: Coby Lee Jent v. Jerrilee Cave (Jent), and Elizabeth Stevens, 19A-JP-1045.