COA upholds custody modification in father’s favor

An Indiana-based father was properly awarded primary custody of his two children who until recently had lived with their mother in North Carolina, the Court of Appeals of Indiana has ruled.

Appellant-petitioner Kristi M. McClendon is the biological mother of 16-year-old K.T. and 9-year-old D.T., while appellee-respondent Richard Triplett is the biological father of D.T. and the adoptive father of K.T. McClendon and Triplett were married in 2013 but divorced in 2016, with both parents sharing legal and possession custody over the children.

Triplett lives in Bluffton while McClendon and the children have moved several times, living in both South Carolina and North Carolina with two men whom McClendon subsequently married, including Justin McClendon. K.T. has attended six different schools and D.T. three because of the moves.

K.T. eventually enrolled in an online home-schooling program while D.T. was enrolled in a private school, despite an original plan to home-school him, as well. While Triplett’s relationship with K.T. was strained for a time, the two have since grown closer and she has expressed a desire to live with him.

In September 2020, while living in North Carolina, K.T. and her mother were arguing when Justin McClendon walked in and grabbed K.T.’s phone, allegedly scratching her arm. Later that month, Kristi agreed to let K.T. move to Indiana after Halloween but entered her room the same night and told her daughter that she would be leaving at 6 a.m. the next day.

According to K.T., her mother took her to the airport and left without saying goodbye, then did not respond to Triplett’s text indicating K.T. had arrived safely. Kristi did not contact Triplett for another six weeks, blocking his number and keeping him from contacting D.T. for four months.

In October 2020, Triplett filed a petition to modify custody, requesting sole custody of both K.T. and D.T. and alleging a substantial change in circumstances. A guardian ad litem, Angelica Fuelling, was appointed and eventually filed a report, two days before an evidentiary hearing, recommending that Triplett be awarded primarily physical custody.

Kristi moved to continue the hearing because the GAL report was allegedly untimely, but the Adams Circuit Court denied that request. A separation of witnesses order was put in place at the hearing, but two of Triplett’s witnesses spoke to K.T. while waiting to testify.

K.T. herself took the stand without her parents in the room, over her mother’s objection. K.T. testified that she had a “rocky” relationship with her mother and instead wanted to live with her father.

After K.T.’s testimony, Kristi moved to either exclude the testimony of her daughter and the two witnesses who had spoken to her, or for a mistrial, but the trial court ultimately denied that motion.  The court then issued an order awarding primary physical and sole legal custody to Triplett while Kristi was awarded parenting time.

Kristi raised four arguments on appeal, alleging the trial court had abused its discretion by:

• Denying her motion for a continuance.
• Allowing K.T. to testify outside her parents’ presence.
• Denying the motion to strike.
• Modifying custody.

In rejecting each of those arguments, the COA determined Kristi had failed to demonstrate any prejudice, abuse or error.

First addressing the allegedly untimely GAL report, Judge Elizabeth Tavitas noted the trial court did not require Fuelling to file a report at all. Additionally, Tavitas said the statute Kristi relied on — Indiana Code § 31-17-2-12 — was not applicable.

“The GAL testified in a manner that was consistent with her report, and the GAL was subject to cross-examination by both Mother and Father,” Tavitas wrote. “Moreover, Mother’s conduct was a substantial factor in the GAL’s delay in filing the report.”

Turning next to K.T.’s testimony, the COA rejected Kristi’s argument that she was deprived of her right to confront a witness, noting counsel for both Kristi and Triplett were allowed to remain in the room. Thus, K.T.’s testimony was consistent with Indiana Rule of Evidence 611.

Likewise, the trial court did not err in declining to strike K.T.’s testimony or that of the two witnesses who spoke to her before their testimony, Tavitas wrote. That’s because the conversation occurred prior to any of the three witnesses taking the stand, so none of them could have changed their testimony based upon the testimony of another.

“Moreover, even if a violation occurred, Mother was not prejudiced by the denial of her motion to exclude the witnesses,” Tavitas continued. “… K.T.’s testimony regarding her relationships with Mother and Father and her wishes was consistent with her earlier statements to the GAL. Under these circumstances, any violation of the separation of witnesses order was harmless.”

Finally, the COA rejected Kristi’s argument that the trial court erred by modifying custody, agreeing instead with the trial court that there were “substantial changes” warranting modification and that modification was in the children’s best interests.

“The trial court placed more weight on Father’s stability,” Tavitas concluded. “… Father demonstrates his willingness to promote the Children’s relationships with other family members, including maternal family members. … As such, the trial court’s modification of physical and legal custody is not clearly erroneous.”

The case is In the Matter of the Marriage of: Kristi M. McClendon v. Richard L. Triplett, 21A-DR-1852.