Kuiper v. Anderson

634 N.E.2d 556, 1994 Ind. App. LEXIS 614, 1994 WL 202558
CourtIndiana Court of Appeals
DecidedMay 26, 1994
Docket45A03-9306-CV-180
StatusPublished
Cited by8 cases

This text of 634 N.E.2d 556 (Kuiper v. Anderson) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kuiper v. Anderson, 634 N.E.2d 556, 1994 Ind. App. LEXIS 614, 1994 WL 202558 (Ind. Ct. App. 1994).

Opinion

GARRARD, Judge.

When Thomas and Julia Anderson (now Kuiper) had their marriage dissolved on June 27, 1988 the mother was awarded custody of their three children. The oldest child became emancipated and by agreement of the parties the middle child, Kellie, began residing with the father in May, 1992, when she was nearing fifteen. About that time the father petitioned for a custody modification in which he sought eustody of both Kellie and the youngest child, Jordan, who was then eight and a half. Hearing was held in January, 1993, and the court awarded custody of both children to the father. The mother appeals the order granting the change of custody of Jordan. The question before us is the proper application of the standard by which a change of custody is to be determined.

IC 31-1-11.5-22(d) provides,

"The court in determining said child custody, shall make a modification thereof only upon a showing of changed cireumstances so substantial and continuing as to make the existing custody order unreasonable...."

(Emphasis added.)

That is the standard to be applied when the court is asked to modify a previously entered determination of custody. Smith v. Dawson (1982) Ind.App., 431 N.E.2d 850, 852. The policies behind the standard are to *558 avoid the disruptive effect of moving children back and forth between divorced parents and to dissuade former spouses from using custody proceedings as vehicles for revenge. Id. In amplification our supreme court has long recognized that the welfare of the children is paramount and is promoted by affording them permanent residence rather than the insecurity and instability that follow changes in custody. Wible v. Wible (1964) 245 Ind. 235, 241, 196 N.E.2d 571, 574; Adams v. Purtlebaugh (1951) 230 Ind. 269, 275, 102 N.E.2d 499, 502. In other words it has been our judgment and that of the legislature that children will normally prosper and mature, will learn to accept discipline and to set their own and respect others' boundaries under a standard of consistency better than they will otherwise, even though at any given point in time the noncustodial parent may appear capable of offering "better" surroundings, either emotional or physical. In the larger sense, then, stability in surroundings, schooling, relationships, authority figures, daily routine, economic cireumstances, ete. constitute a substantial determinant in assessing the statutorily enumerated factors relevant to a determination of the best interests of the child.

On the other hand, the standard does not mean that in order to grant a change, the trial court must find that the present custodial parent is unfit. The asserted changes in conditions are to be judged in the context of the whole environment. Lamb v. Wenning (1992) Ind., 600 N.E.2d 96, 99.

We recognize, of course, that the trial court is invested with sound discretion in making a child custody determination, and our review is limited to whether the court abused its discretion. Thus, in order to reverse we must be persuaded that the decision is clearly against the logic and effect of the cireumstances before the court. Phrased somewhat differently, in order to reverse we must believe that the court clearly erred. Considering the standard the trial court was required to apply before entering a change in custody, the court's findings and the evidence in the record before us, we find that the court did err in this case and that the evidence before it was simply insufficient to establish a change in cireumstances so substantial and continuing as to make the existing order unreasonable. We therefore reverse and remand with instructions to deny the petition to modify the custody award of Jordan away from his mother.

At the outset we note that the father has a good job at which he earns about $56,000 per year, has apparently remarried successfully (having adopted the daughter of his present wife and having had a child by the marriage) and is interested in and capable of providing for his children. Although the psychological evaluation indicated that he has a tendency to deny problems and to manage anger indirectly, it is not disputed that he is a fit and proper person to have custody even though he is not perfect.

Pursuant to the stipulation of the parties, the court ordered that they and the children submit to a psychological evaluation by Dr. Douglas Caruana, Ph.D., a licensed psychologist, and that his recommendations should be specific as to custody and visitation and should be made part of the record in this case.

Dr. Caruana apparently met with one or more of the parties on nine different dates. At times he met with one or more of the children, at times with the parents, at times with both. His report carefully assessed the strengths and weaknesses of both parents and the children. (Tr. 231-2838) His conclusion concerning Jordan stated:

Jordan should remain in the custody of Julie. Julie has not demonstrated any substantial and persistent change which would cause her to be deemed inappropriate for parenting. Jordan appears comfortable, stable and healthy with the current custody/visitation arrangements. He does profess a desire to change residence, but his reasons for doing so appear to represent a wish to slightly improve his condition as well as spend more time with his father, and do not necessarily reflect a significant psychological need which, if unmet, would at present cause serious difficulties or damage to him.

Despite Dr. Caruana's findings and recommendation the court determined that the pri- *559 or order was unreasonable and enumerated five reasons to support that conclusion. They were:

a. Mother has failed to provide adequate supervision for the parties' minor children at all times;
b. Mother's relationship with Lee has affected the children in a detrimental fashion in that Mother has devoted less time to the children since the inception of that relationship and has in fact embarrassed or angered the children as a result of her conduct with Lee;
c. - Mother has voluntarily agreed that Father should have custody of Kellie;
d. Father has reestablished a close relationship with Kellie and in his marriage offers a stable, nurturing home for the care of the parties' minor children; and,
e. The children have each expressed a desire to live with their Father and, just as importantly, have expressed a desire to live together.

The last three findings relate essentially to the agreed-to change of Kellie's custody. The evidence at trial supports these findings, although we note that Dr. Caruana's report assessed Jordan's desire to live with his father as based upon mostly procedural reasons. 1

Several cases have already determined that the child's preference for custody by a particular parent standing alone is insuffi-client to constitute a substantial change in cireumstances. See, e.g. Drake v.

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Cite This Page — Counsel Stack

Bluebook (online)
634 N.E.2d 556, 1994 Ind. App. LEXIS 614, 1994 WL 202558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuiper-v-anderson-indctapp-1994.