COA reverses award of legal custody

A trial court’s order in a protracted feud between a divorced mother and father over the care of their child brought a partial reversal of custody from the Indiana Court of Appeals and a warning in a concurring opinion about the bias the parenting coordinator admitted to having against the mother.

Virginia Madden, the mother, appealed the Henry Circuit Court’s order that awarded legal custody of her youngest child to Robert Phelps, the father. The pair had decided to co-parent, but conflicts kept arising, often involving the court, over the care of B.P.

In February 2018, the trial court appointed Dr. Erica Kane as the parenting coordinator to help the parents resolve their issues without court intervention. The following month, the father requested the parenting time agreement be modified so that the child would spend two-week blocks of time at each parent’s home. The mother objected.

At a hearing in August 2019, father asked for primary custody of his child. On cross-examination, he understood that even if he got primary custody, he would still have joint legal custody with the child’s mother.

The trial court awarded primary physical and sole legal custody to the father.

On appeal, the appellate panel reversed the award of legal custody and affirmed award of primary custody in Virginia Madden v. Robert Phelps, 19A-JP-2630.

The Court of Appeals found the trial court had abused its discretion when it modified legal custody because neither party had consented to try the issue during the hearing. Before the appellate court, the mother asserted that argument, saying the parties did not agree the issue of joint legal custody would be contested. Father countered the legal custody was put at issue by the filing of open-ended requests to modify custody.

“Although Father asserted during the hearing that he wanted to legally change who made most of the decisions about B.P., when Mother’s counsel observed that Mother would still have joint legal custody of B.P. even if Father received primary physical custody, Father affirmed that was his understanding,” Judge Patricia Riley wrote for the court. “Thus, Mother did not believe that legal custody was in play, and Father did not indicate that he sought sole legal custody. Neither party submitted proposed findings of fact and conclusions requesting sole legal custody.”

However, the Court of Appeals was unconvinced by the mother’s argument that the trial court’s order modifying primary physical custody in favor of the father was clearly erroneous. In part, the mother argued the trial court should not have considered Kane’s recommendations that the father have physical custody because of Kane’s admitted bias toward Phelps.

In July 2019, the trial court had a hearing on the mother’s motion to have Kane removed as parenting coordinator. Kane testified that she had a personal bias against the mother.

The appellate noted the trial court found the trial court limited Kane’s involvement by not allowing her to serve as a custody evaluator in the case or offer a binding recommendation for a change in the child’s primary physical residence.

“There is no indication in the record that Dr. Kane acted as a formal custody evaluator in this matter or that the trial court considered the recommendation contained in Dr. Kane’s report to be binding on it or the parties. In addition, the same trial court judge presided over both the hearing on Mother’s petition to remove Dr. Kane and the final hearing in this matter,” Riley wrote. “The trial court judge was, therefore, aware of the interaction of the parties with Dr. Kane and what Dr. Kane had said at the hearing about her personal bias against Mother. It was within the trial court’s discretion to credit or discredit Dr. Kane’s recommendation regarding physical custody in light of any potential bias on Dr. Kane’s part….”

Judge Elizabeth Tavitas wrote a concurring opinion, warning of a “slippery slope” created by Kane not only exceeding the scope of her duties but also advocating for the father.

“When parties work with a court-appointed parenting coordinator, they expect to be aided by a neutral official in resolving their disputes. The parties do not expect the parenting coordinator to simultaneously assess the parties for the court or to advocate regarding such matters as custody,” Travitas wrote. “This is the first step down a slippery slope because such conflation of roles can sabotage the parent coordination process.”