Reversal: Joint custody not supported, trial court must choose which parent will get sole custody

The Court of Appeals of Indiana has reversed a custody arrangement for a feuding couple, ordering the Warrick Circuit Court to choose which parent will have sole custody of their child after concluding the case’s findings did not support the award of joint legal custody.

Prior to the birth of her child E.P., Stephanie Tonevich obtained a protective order against the child’s father, Kasey Perkins, based on allegations that he had been physically and verbally aggressive with her and her other children. Once she obtained the protective order, Tonevich relocated to Lake County but continued her relationship with Perkins.

After E.P. was born in June 2019, Perkins executed a paternity affidavit.

Perkins traveled to Lake County on the weekends to visit with E.P. until September 2019, when the parents had a verbal altercation involving Tonevich’s current boyfriend. After that, Tonevich and Perkins were unable to agree on a time and place for him to exercise parenting time.

Perkins filed a petition to establish parenting time and joint legal custody in December 2019 in Warrick Circuit Court, and a guardian ad litem was appointed for E.P. At the sixth and final hearing on Perkins’ petition, GAL Kelly Ferguson recommended that the parties share “modified” joint legal custody of E.P., giving Perkins input on major decisions but giving Tonevich the final say.

In August 2021, the trial court entered its order awarding the parents joint physical and legal custody of E.P. A motion to correct error filed by Tonevich was later denied.

The Court of Appeals, however, reversed on Tuesday.

“Mother argues that the trial court’s findings do not support the judgment, and we agree,” Judge Patricia Riley wrote. “The trial court entered findings that ‘the parties have demonstrated an inability to cooperate and agree on what is in [C]hild’s best interests’ and that ‘the parties are currently unable to communicate with each other in a constructive fashion.’ There is ample evidence in the record to support these findings, as the parties were unable to successfully arrange videocalls between Child and Father or exchanges of Child for Father’s parenting time.

“… Despite the evidence of Parents’ inability to communicate and cooperate to advance Child’s interests and the trial court’s findings, the trial court entered an award of joint legal custody. Given the importance of this factor to a determination of joint legal custody, we conclude that the trial court’s findings do not support the judgment in this case,” Riley continued. “Rather, it appears that the trial court attempted the very ‘cutting [of] the baby in half’ we have concluded is inappropriate where parents cannot work together. … In addition, we observe that Mother and Father had not agreed to joint legal custody, which, apart from the trial court’s findings, does not support an award of joint custody.”

The case was thus remanded “for the trial court to enter an award of sole legal custody for either Father or Mother.” The COA noted the trial court is not required to accept additional evidence and can render its decision based on the six evidentiary hearings.

In a separate concurring opinion, Judge Elizabeth Tavitas emphasized the “need for clear findings” in cases like this one.

“I recognize that the trial court was not required to make specific findings unless requested by the parties,” Tavitas wrote. “The trial court here entered sua sponte findings of fact and conclusions thereon, but it did not enter findings regarding the Child’s best interest, the statutes it applied, or the factors it considered in awarding joint legal custody.

“Such abbreviated findings, although permissible, make review of the trial court’s order more difficult,” she continued. “Under these circumstances, we must review those issues without findings under the general judgment standard — we will affirm ‘if it can be sustained on any legal theory supported by the evidence.’ Hahn-Weisz v. Johnson, 189 N.E.3d 1136, 1145 (Ind. Ct. App. 2022).

“A better practice, however, would be to cite the applicable statutes and make findings regarding the child’s best interests and the relevant factors,” she concluded.

The case is In Re the Paternity of E.P. (Minor Child) Stephanie A. Mercede Tonevich v. Kasey C. Perkins, 22A-JP-57.