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The Indiana Supreme Court affirmed a two-year protective order Monday for a mother and her child, upholding a trial court’s ruling that the child’s father “represents a credible threat to the safety” of the mother or child.
According to court records, G.D., the mother, and S.D., the father, are the divorced parents of a daughter, H.D.
G.D. and H.D. live in northern Indiana, while S.D. lives in Michigan.
The parties’ divorce proceedings occurred in Michigan, and S.D. was granted parenting time with H.D., to be supervised by G.D.
In December 2021, S.D. exercised supervised parenting time at the mother’s house with G.D. and H.D., who was 2 years old at the time.
During that parenting time, a physical altercation ensued.
The fight began when S.D. told G.D. that he intended to leave the house with H.D. S.D. allegedly grabbed the child and tried to leave with her., but G.D. grabbed S.D. by the throat to get him to release the child.
S.D. then smacked H.D. in the mouth while the child was crying, according to court records.
The choking eventually forced S.D. to let go of H.D.
G.D. then ran out of the house with H.D. and called police.
After listening to both parties at a remote hearing, the Starke Circuit Court found that both parents had engaged in acts of domestic violence and qualified as credible threats. But the court found that the mother had “more credibility” than the father.
Thus, the trial court issued a two-year protective order, concluding that G.D. had established that “domestic or family violence” had occurred and that S.D. “represents a credible threat to the safety” of G.D. or H.D.
A majority of the Court of Appeals of Indiana reversed, finding it undisputed that S.D. had parenting time without incident after the December 2021 incident and before the issuance of an ex parte order of protection.
In a separate dissent, Chief Judge Robert Altice wrote that while the issues at hand presented “a close case,” the trial court “is the one to make that call.”
G.D. petitioned for transfer, which the Indiana Supreme Court granted.
The high court then affirmed the trial court, concluding the lower court’s evidence-based findings support its judgment to issue a protective order.
Chief Justice Loretta Rush wrote the opinion for the court.
In her opinion, Rush referenced the Indiana Civil Protection Order Act and its requirement that petitioners make specific showings before a court can issue a protective order. She then “echoed” Altice’s observation that in close cases, trial courts should make the call.
“And this is particularly true in protective order cases, where our trial judges see and hear the parties interact as they relay details about intensely personal, traumatic events. Our review of this evidence on appeal is far less clear from our vantage point in the ‘far corner of the upper deck,’” Rush wrote.
The Supreme Court’s opinion dismissed the father’s contention that the trial court erred by not conducting a balancing test to determine if relief should be granted.
The trial court, based on the evidence before it, could reasonably conclude that the father caused physical harm to the child and that his verbal outburst placed the mother and child in fear of physical harm, Rush wrote.
Further, the Supreme Court disagreed with the father’s contention that the evidence was insufficient to support the trial court’s findings.
The violent altercation took place only 11 days before the mother filed for a protective order, Rush wrote, and only a few weeks before the two-year order was issued.
“And while Father saw Child once after the altercation without incident, that occurrence does not mean the threat of violence dissipated,” Rush wrote, noting G.D. testified that the altercation wasn’t S.D.’s first angry outburst.
All justices concurred in S.D. v. G.D., 23S-PO-89.
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