Paternity of V.M. v. Moore

790 N.E.2d 1005, 2003 Ind. App. LEXIS 1197, 2003 WL 21489118
CourtIndiana Court of Appeals
DecidedJune 27, 2003
Docket06A04-0303-JV-117
StatusPublished
Cited by5 cases

This text of 790 N.E.2d 1005 (Paternity of V.M. v. Moore) 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
Paternity of V.M. v. Moore, 790 N.E.2d 1005, 2003 Ind. App. LEXIS 1197, 2003 WL 21489118 (Ind. Ct. App. 2003).

Opinion

OPINION

KIRSCH, Judge.

Victor Benavides appeals the trial court’s decision denying his request for modification of permanent custody of his two minor children, V.M. and V.B., 1 which had been previously placed with the children’s maternal grandfather Phillip Moore. Benavides raises two issues for review, which we consolidate and rephrase as: whether the trial court erred in denying his petition for modification of custody and continuing permanent custody with Moore on the basis that doing so was in the best interests of the children.

We affirm.

FACTS AND PROCEDURAL HISTORY

Benavides is the biological father of V.M., age 9, and V.B., age 7, and although Benavides assumed a parental role of A.M., age 11, he is not her biological father or her stepfather. All three children were born out of wedlock. Approximately seven years ago, the children’s mother agreed to relinquish the care and custody of the children to her father. She has never expressed a real interest in the children and has had very little contact with them. She currently lives in Arizona and did not attend the custody hearing. Because of his lack of fitness and willingness to parent the children, due in large part to his past drinking problems and criminal behavior, Benavides also voluntarily relinquished custody of the children to Moore. It is undisputed that neither parent could then provide for the needs of the children.

Benavides is now married and has a biological child with his wife and two stepchildren. Until two or three years ago, Benavides had only sporadic contact with V.M. and V.B. Since then, he quit drinking and using drugs, attends church regularly, has consistent visitation with the children on alternate weekends, and pays child support to Moore.

In November 2001, Moore filed a petition with the trial court to make the temporary custody order a permanent order. Benavides did not dispute this at the time. After Moore and his wife moved the three children to Pittsboro from Lebanon, where Benavides resides, Benavides filed a petition for modification of custody of the children. A hearing was held on December 27, 2002, and the trial court denied the modification of custody on January 21, 2003, but awarded liberal visitation with all three children. Benavides appeals from this order.

DISCUSSION AND DECISION

Indiana law has traditionally recognized that “natural parents are entitled to *1007 the custody of their minor children, except when they are unsuitable persons to be entrusted with their care, control, and education.” Gilmore v. Kitson, 165 Ind. 402, 406, 74 N.E. 1083, 1084 (1905). We observe that a child custody determination falls squarely within the sound discretion of the trial court and such determination will not be disturbed on appeal absent an abuse of discretion. Matter of Guardianship of R.B., 619 N.E.2d 952, 955 (Ind.Ct.App.1993). We are reluctant to reverse a decision concerning child custody unless the determination is clearly erroneous and contrary to the logic and effect of the evidence. Id.

Because appellate courts defer to the trial court’s discretion, we disturb the judgment only where there is no evidence supporting the findings or where the findings fail to support the judgment. In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind.2002). Because we may not reweigh the evidence, but instead may consider only the evidence favorable to the trial court’s order, the “challenger thus labors under a heavy burden and must show that the trial court’s findings are clearly erroneous.” Id. at 288. We further note that upon review of a judgment requiring proof by clear and convincing evidence, appellate courts may not impose their views as to whether the evidence is clear and convincing “but must determine, by considering only the probative evidence and reasonable inferences supporting the judgment and without weighing the evidence or assessing witness credibility, whether a reasonable trier of fact could conclude that the judgment was established by clear and convincing evidence.” Id.

Recently, in B.H., our supreme court articulated the following rule with respect to the standard to be applied in custody disputes between a natural parent and a third party:

Despite the differences among Indiana’s appellate court decisions confronting child placement disputes between natural parents and other persons, most of the cases generally recognize the important and strong presumption that the child’s best interests are ordinarily served by placement in the custody of the natural parent. This presumption does provide a measure of protection for the rights of the natural parent, but, more importantly, it embodies innumerable social, psychological, cultural, and biological considerations that significantly benefit the child and serve the child’s best interests. To resolve the dispute in the caselaw regarding the nature and quantum of evidence required to overcome this presumption, we hold that, before placing a child in the custody of a person other than the natural parent, a trial court must be satisfied by clear and convincing evidence that the best interests of the child require such a placement. The trial court must be convinced that placement with a person other than the natural parent represents a substantial and significant advantage to the child. The presumption will not be overcome merely because “a third party could provide the better things in life for the child.” Hendrickson [v. Binkley], 161 Ind.App. [388,] 396, 316 N.E.2d [376,] 381 [ (1974), cert. denied, 423 U.S. 868, 96 S.Ct. 131, 46 L.Ed.2d. 98 (1975) ]. In a proceeding to determine whether to place a child with a person other than the natural parent, evidence establishing the natural parent’s unfitness or acquiescence, or demonstrating that a strong emotional bond has formed between the child and the third person, would of course be important, but the trial court is not limited to these criteria. The issue is not merely the “fault” of the natural parent. Rather, it is whether the important and *1008 strong presumption that a child’s interests are best served by placement with the natural parent is clearly and convincingly overcome by evidence proving that the child’s best interests are substantially and significantly served by placement with another person. This determination falls within the sound discretion of our trial courts, and their judgments must be afforded deferential review. A generalized finding that a placement other than with the natural parent is in a child’s best interests, however, will not be adequate to support such determination, and detailed and specific findings are required. [In re Marriage of] Huber, 723 N.E.2d [973,] 976 [ (Ind.Ct.App.2000) ].

Id. at 287 (emphasis added).

Applying this rule to the present case, it is presumed that it was in the best interest of the children to be placed in the custody of their natural father.

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862 N.E.2d 686 (Indiana Court of Appeals, 2007)
In Re Guardianship of JK
862 N.E.2d 686 (Indiana Court of Appeals, 2007)
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839 N.E.2d 246 (Indiana Court of Appeals, 2005)
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Bluebook (online)
790 N.E.2d 1005, 2003 Ind. App. LEXIS 1197, 2003 WL 21489118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paternity-of-vm-v-moore-indctapp-2003.