K.W. v. B.J.

949 N.E.2d 839, 2011 Ind. App. LEXIS 895, 2011 WL 1936014
CourtIndiana Court of Appeals
DecidedMay 20, 2011
DocketNo. 82A05-1010-JP-639
StatusPublished
Cited by13 cases

This text of 949 N.E.2d 839 (K.W. v. B.J.) 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
K.W. v. B.J., 949 N.E.2d 839, 2011 Ind. App. LEXIS 895, 2011 WL 1936014 (Ind. Ct. App. 2011).

Opinions

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

K.W. (“Mother”) appeals the trial court’s order granting B.J. (“Father”) joint physical and legal custody of M.W.

We reverse and remand.

ISSUE

Mother raises two issues, one of which we find dispositive: Whether the trial court abused its discretion in denying her motion for relief from judgment.

FACTS

Mother gave birth to M.W. on May 17, 2010. Four days later, Mother signed a Title IV-D Notice and Waiver, wherein she acknowledged that the Prosecutor “does not actually represent custodial parents or custodians, but is merely providing child support services” and that she “may need to consult with a private attorney or legal services agency regarding [her] legal rights, including but not limited to ... custody....” (Father’s App. 2). On June 25, 2010, M.W., by her next friend, the Vanderburgh County Prosecutor (the “Prosecutor”), filed a petition to establish paternity in Father and appropriate child support.

The trial court held a hearing on the petition on August 5, 2010. Mother appeared pro se; Father appeared in person and by counsel. The Prosecutor appeared on behalf of M.W. regarding the sole issue of child support.

During the hearing, Father admitted paternity, after which the following colloquy took place:

[Court]: ... Have the parties reached any agreements in regard to custody or....
[Father’s Counsel]: I have not had an opportunity to speak with [Mother] this morning. The father would like to have joint physical and legal custody.
[Court]: Okay, any objection to that, ma’am?
[Mother]: No.
[Court]: Okay. [The] parties are ordered to have joint legal and physical custody of the child. Is either parent asking for support from the other?
[Mother]: I’m asking for support.
[Court]: You want support?
[Mother]: Yes.

(Tr. 7).

The trial court entered its judgment, finding and ordering as follows:

1. Father admits that he is the biological father of the child.
2. Parties agree to joint physical and legal custody of the child.
3. The Court does not order a set parenting time schedule, and the parties are to agree to their schedule splitting the time equally.
4. That the court orders child support in the amount of ten dollars ($10.00) per week payable through the Vanderburgh County Clerk[.]
5. That the Father is given credit for support paid directly to the Mother since the time of filing in the amount of [$360.00] and Father provided proof of payments since the birth of the parties’ minor child[.]
[841]*8416.That the Father is order[ed] to attend father’s classes[.]

(Mother’s App. 6).

The order bears a signature date of August 31, 2010, but is file-stamped August 13, 2010. According to the chronological case summary, however, the trial court clerk did not enter the order until September 15, 2010.

On or about September 15, 2010, counsel for Mother filed an appearance on her behalf. On September 29, 2010, Mother, by counsel, filed a motion to correct error and a motion for relief from judgment pursuant to Indiana Trial Rule 60(B)(1), (2), and (8).1 In support of the motions, Mother filed an affidavit, averring as follows:

3. I attended an initial hearing in juvenile court regarding paternity in this cause. The hearing as I understood was only intended to address child support. No one discussed with me any terms of custody, child support or parenting time except what was said in open court, which I did not understand. I did not know what joint physical and legal custody meant.
4. I am not familiar with legal proceedings of this nature and this is my first child.
5. I was not aware of my legal rights at the initial hearing, and no one present explained them to me at the hearing.
6. I was not advised at the hearing that I had a right to counsel or that I had a right to a hearing on the issues of custody, visitation and child support.
7. When I went to the hearing I was not aware that the Prosecutor would not be representing me and that I would be appearing without an attorney. I thought I would be able to talk to the Prosecutor before the hearing but was unable to do that.
8. I did not understand the legal effect of the answers I gave at the hearing when asked. Had I known the child would be staying with the father half the time I never would have agreed to this. The custody arrangement is not in [M.W.j’s best interest because there are five adults living in the home, four dogs that live in the house including a Pit Bull mix, ... a Boa Constrictor, a smaller snake, and two other reptiles. Furthermore, three of the people that live in the house smoke.
9. I do not believe that it is in [M.W.Js best interest to share physical and legal custody with the father because it will interfere with the time that I need to bond with her. [M.W.] was not even four months old at the time of the hearing and needs to spend the majority of time with her mother. No one at the hearing asked me if it was in [M.WJ’s best interest to spend half of the time with h[er] father, and I did not understand that I was agreeing to custody half of the time, or that I would have to consult with the father regarding major aspects of [M.W.j’s life.
10. Had I understood what the Court’s order meant, I would not have agreed to it because I had been the person who cared for the daily needs of [M.W.] and I believe I had bonded with her.... [Father] would have seen [M.W.] 15 times and spent a total of 24 hours and 5 [842]*842minutes with her the total period of time between her birth and the time of the hearing. Of that hours only about SO minutes were unsupervised ....
11. I did not execute and file a Verified Written Stipulation regarding support, custody, and parenting time, and did not file a joint petition in this case resolving the issues of custody, child support and parenting time.
12. I was not sworn in at the hearing and no one gave testimony under oath concerning whether joint legal and physical custody was in [M.W.j’s best interest. There was no evidence regarding the age and sex of the child, wishes of the child’s parents, the wishes of the child, interaction and interrelationship of [M.W.] with her parents ... and any other person who may significantly affect her best interest, her adjustment to home, school and community, the mental health of all individuals involved, a pattern of domestic or family violence by either parent, or evidence that the child had been cared for by a de facto custodian.

(Mother’s App. 53-54).

On September 30, 2010, Mother filed a motion for expedited hearing. The trial court denied Mother’s motions on October 1, 2010.

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949 N.E.2d 839, 2011 Ind. App. LEXIS 895, 2011 WL 1936014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kw-v-bj-indctapp-2011.