IN RE: the Paternity of R.M.H. (2025)

MEMORANDUM DECISION

[1] Jashua Higdon-Sailers (“Father”) appeals the Floyd Circuit Court's order modifying custody over his minor daughter R.M.H. (“Child”). Father presents two issues for our review:

1. Whether the trial court abused its discretion when it modified custody over Child.

2. Whether the trial court adequately explained its reasons for deviating from the Indiana Parenting Time Guidelines (“the Guidelines”).

[2] We affirm.

Facts and Procedural History

[3] Father and Desiree Freiberger (“Mother”) are the parents of Child, who was born on August 23, 2020. In December, Father filed a petition to establish paternity, custody, parenting time, and child support. During an evidentiary hearing in September 2022, Mother testified regarding her history of substance abuse and treatment. And Father testified regarding his two prior arrests for domestic violence against his fiancée, including Level 6 felony charges for strangulation and intimidation. In October 2022, the trial court ordered the parties to share both legal and physical custody over Child.

[4] In February 2024, Mother was experiencing post-partum depression following the birth of a son,¹ and she attempted suicide. As a result of this incident, Father filed a petition for an emergency modification of custody. During a hearing on that petition on March 5, Mother testified that she had not used methamphetamine for over one year and that she had been sober from “alcohol and anything else” for forty-six days. Tr. p. 57. Mother testified that she had attempted suicide after she was prescribed Prozac for her post-partum depression and had a bad reaction to the medication. After she was hospitalized for the suicide attempt, her treating physician stopped the Prozac and prescribed a new anti-depressant. Mother testified that she was doing well with the new medication.

[5] At the conclusion of the March 5 hearing, the trial court described Mother's suicide attempt as “a lot [to deal with].” Id. at 59. And the following colloquy occurred:

THE COURT: ․ And right now—I also don't want DCS to be involved with you and [Child], so I think it makes all the sense in the world [that] legal custody and residential custody should be with Dad right now ․

[Mother]: Okay.

THE COURT: ․ temporarily, until we get this sorted out[,] and you even in your heart know that because your [other children] are with your mom.

[Mother]: Right.

THE COURT: Okay? So it makes sense that if [Child] has a dad and he's a fit and appropriate custodian, he should have that.

Id. (emphases added).

[6] The trial court continued:

Okay. So just let me just repeat that back, because I'll write an order. So the Court finds that there's been a significant change of circumstances and that a change of custody is in the best interest of [Child]. Specifically, for the time being, Father shall have full legal and residential custody of the minor child. Mother shall have parenting time supervised by her mother on Monday and Wednesday from 12 to 5. They will pick up the child from paternal grandmother at noon, and Dad will pick h[er] up from maternal grandmother's house at 5 on Monday and Wednesday. Then Friday 11 to 5․

* * *

Okay. Another part of the order will be ․ that Mother is to continue with her mental health and substance abuse treatment. And then when the time comes—I don't like to put an artificial time on these things, so this is open—there doesn't need to be a new motion for change of custody or parenting time filed. Either party, upon a reasonable amount of time, can come and ask for a hearing to adjust that. Now, you guys can agree amongst yoursel[ves] and not come back if you want small changes or whatever. But when the time comes and you want to come back, either this isn't working because you find out that she's having visits that aren't supervised, which would not be wise, you have a problem, or ma'am, you're finding you're not getting [Child] as agreed to, or you think your recovery is to such a degree that you should have more, you can file for a hearing. But what I don't welcome is in six weeks you decide you're fine and that, because it's going to require at this point—I mean, it's not going to be like a CHINS hearing or a DCS, okay? But I'm going to have to have some real proof from your psychiatrist and your therapist and your substance abuse people that you have made some really significant strides. Because the worst thing is the yo-yo effect of back and forth ․

* * *

․ So you just need to dedicate yourself to that recovery.

* * *

And I'm here and I'm available for hearings. It's very easy to get a hearing, obviously very quickly in my court. I will write up an order hopefully this afternoon with all of that. Tomorrow is Wednesday. If you do not have the order, it is the order, it is recorded, it is here, so the procedure should start tomorrow.

Id. at 62-64 (emphasis added).

[7] In June, about two months later, Father agreed to let Child stay with Mother overnight every Wednesday and every other weekend. However, in August, while Child was with Mother and her siblings, one of Child's brothers cut her hair while Mother was in another room changing the baby's diaper. Father was upset and terminated the overnight visits. Father also reduced Mother's parenting time to one day per weekend.

[8] On August 25, Mother filed a petition for modification of custody over Child. Following a hearing on that petition, the trial court entered findings and conclusions awarding Mother sole legal custody and primary physical custody, with Father exercising parenting time. The court awarded Father less parenting time than recommended by the Parenting Time Guidelines. In particular, the trial court found that Mother had made significant progress in her recovery; the parties’ living conditions had changed to favor Mother; Father had not been candid with the court regarding his history of domestic violence; and Father had violated the trial court's March 2024 order regarding parenting time. This appeal ensued.

Discussion and Decision

Issue One: Custody Modification

[9] Father contends that the trial court abused its discretion when it granted Mother's petition to modify custody over Child. In granting Mother's petition, the court entered findings of fact and conclusions thereon following an evidentiary hearing. In such appeals, we review the court's judgment under our clearly erroneous standard. Jones v. Gruca, 150 N.E.3d 632, 640 (Ind. Ct. App. 2020), trans. denied. “We ‘neither reweigh evidence nor judge witness credibility.’ ” Id. (quoting R.L. v. Ind. Dep't of Child Servs. & Child Advocates, Inc., 144 N.E.3d 686, 689 (Ind. 2020)). Rather, a judgment is clearly erroneous only when there are no record facts that support the judgment or if the court applied an incorrect legal standard to the facts. Id.

[10] Indiana Code section 31-14-13-6 requires the party seeking to modify an existing custody order to prove that: (1) modification is in the best interests of the Child; and (2) there has been a substantial change in one or more of the factors set forth in Indiana Code section 31-14-13-2. The factors set forth in Indiana Code section 31-14-13-2 (“Section 2”) are:

(1) The age and sex of the child.

(2) The wishes of the child's parents.

(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.

(4) The interaction and interrelationship of the child with:

(A) the child's parents;

(B) the child's siblings; and

(C) any other person who may significantly affect the child's best interest.

(5) The child's adjustment to home, school, and community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either parent.

(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) of this chapter.

[11] Father first argues that the trial court erred when it found that its March 5, 2024, order modifying custody of Child was “a TEMPORARY Order” and considered changed circumstances since both the October 2022 custody order and the March 2024 custody order. Appellant's App. Vol. 2, p. 14. Father maintains that

[t]he question of whether the March 2024 order was a temporary (or provisional) order is a threshold question in this appeal because a custody modification is premised upon a change in circumstances from the Court's prior order; therefore, it matters whether the “last” final order was the order from September of 2022 or it was the Order from March of 2024. See Ind. Code § 31-17-2-21. The trial court's declaration that the March 2024 order was a temporary order is erroneous. The custody modification request must be evaluated by adjudging the change in circumstances between March 2024 and October of 2024.

Appellant's Br. at 17.

[12] In support of this argument, Father relies heavily on this Court's vacated opinion in G.C. v. T.A., 3. N.E.3d 1020, 1031 (Ind. Ct. App. 2014), vacated by G.C. v. T.A., 12 N.E.3d 876 (Ind. 2014) (dismissing appeal). Father's reliance on a vacated opinion of this Court is obviously misplaced, and we do not consider the section of his brief analogizing G.C. to this matter.

[13] Still, Father points out that “[t]he purpose of provisional orders is to meet the needs of a situation until a full hearing can be held.” Appellant's Br. at 18 (citing Mosley v. Mosley, 906 N.E.2d 928, 930 (Ind. Ct. App. 2009)). And he argues that,

[i]t is evident from the record of the March hearing that was [sic] the purpose of the court's order was not to meet the needs of the situation until a full evidentiary hearing could be held. It is clear from the court's statement from the bench and the court's written order that no further hearing was contemplated unless and until circumstances changed and a hearing was requested.

Id.

[14] First, we disagree with Father's characterization of the trial court's statement from the bench at the conclusion of the March 2024 hearing. The court very clearly stated that it was awarding Father custody over Child as a temporary measure while Mother continued her substance abuse recovery. The court used the following words and phrases, which are unequivocal: “right now,” “temporarily,” and “for the time being.” Tr. pp. 59, 62.

[15] Second, in In re Paternity of M.R.A., 41 N.E.3d 287, 293 (Ind. Ct. App. 2015), we explained that

[p]rovisional orders are temporary in nature and designed to maintain the status quo while issues are more fully developed. See Mosley[, 906 N.E.2d at] 929-30․ Notably, there is no authority in the paternity statutes for a provisional order, such as there is in the dissolution statutes. See Ind. Code § 31-15-4-8. Nonetheless, as the underlying principle behind both the paternity and the dissolution statutes is the best interests of the child, In re Paternity of K.J.L., 725 N.E.2d 155, 157 (Ind. Ct. App. 2000), as there is no prohibition on provisional orders in the paternity statutes, and in recognition of the realities of litigation, we see no particular reason why a trial court could not make an appropriate provisional order in a paternity case.

Thus, here, contrary to Father's contention on appeal, the trial court had discretion to enter the temporary custody order.

[16] Next, Father argues that Mother did not prove changed circumstances to support the modification of custody. However, the court found changed circumstances both since the October 2022 custody order and since the March 2024 custody order. Specifically, the court found that: Father had violated the March 2024 order with respect to Mother's parenting time; Father did not share Child's medical information with Mother upon request; Father enrolled Child in school without consulting Mother; Father listed his fiancée and her parents as emergency contacts with the school rather than Mother; Child shares a room with her pre-teenaged and teenaged half-brothers every other weekend at Father's house; Child has her own room at Mother's house; Child's two half-brothers are living with Mother; Mother has made good progress in her recovery; and Mother's parents provide support, including financial support, to Mother and Child. In addition, the court found that,

[a]t the October 8, 2024[,] hearing, the Court learned that at the time of the March 5, 2024[,] hearing [Father] was on pre-trial diversion for an August 24, 2022[,] arrest for Strangulation, Intimidation, Domestic Battery, and Interference with Reporting involving his prior fiancée. [Father] displayed a lack of candor to the Court at the March 5, 2024[,] hearing by not disclosing his own serious issues that had arisen since the prior October 5, 20[22] custody order to the Court. The Court takes judicial notice that this is [Father's] third pre-trial diversion he has entered into for domestic violence charges dating back to 2013.

Appellant's App. Vol. 2, p. 15.

[17] Father contends that Mother did not present evidence to support a change in circumstances regarding the parties’ respective living circumstances since either October 2022 or March 2024. But Father testified that he had moved in with his fiancée in early 2023, so that was a change since the October 2022 order. And Mother had just moved into a new home in March 2024, so that was also a change since the October 2022 order. In addition, Mother's eldest son was under a guardianship and not living with her in October 2022. But at the time of the October 2024 hearing, while the guardianship was still in place, Mother's eldest son was living with her and she was working towards terminating the guardianship.

[18] Father is correct that each of his three cases involving domestic violence predates the October 2022 order. But the trial court did not find that those cases represented a change in circumstances. Rather, the court merely took judicial notice of the charges against Father and noted his “lack of candor” during the March 2024 hearing. Appellant's App. Vol. 2, p. 15. During that hearing, Father and Mother appeared pro se, and Father's history of domestic violence did not come up. On appeal, Father argues that he had no legal obligation to bring up his criminal history.

[19] Be that as it may, Father concedes, in a footnote, that, “as a matter of practice it is almost always better for an advocate to confront adverse facts affirmatively rather than to wait for someone else to bring them up.” Appellant's Br. at 23 n.3. And he asserts that Father was not dishonest; he was just “a poor advocate for himself.” Id. In this regard, it is important to note that the trial court did not find that Father had lied. Rather, the court did not appreciate Father's failure to remind the court during the March 2024 hearing that he had had felony domestic violence charges pending at the time of the September 2022 hearing. At that hearing, Mother presented evidence of the charges, and the trial court praised Father for starting therapy and enrolling in a domestic violence class “on his own[.]” Tr. p. 39. Father did not correct the trial court, either during the September 2022 hearing or the March 2024 hearing, to inform the court that he was participating in therapy and a domestic violence class as part of a diversion program. The trial court did not abuse its discretion when it found that Father had displayed a lack of candor regarding the charges and his participation in a diversion program.

[20] The record also shows that Mother presented evidence regarding significant progress in her recovery since both the September 2022 hearing and the March 2024 hearing. To the extent Father argues otherwise, he is incorrect. And, since the prior hearings, Father had violated the court's order on parenting time, and he had enrolled Child in school without listing Mother as an emergency contact with the school. While Father is correct that, generally, a lack of cooperation with a parenting time order is not appropriate grounds for changing custody, the court here based its decision on several changed circumstances and did not abuse its discretion. See In re Paternity of M.P.M.W., 908 N.E.2d 1205, 1208 (Ind. Ct. App. 2009) (affirming modification of custody where the court punished mother for violating the court's prior order but also based its decision on proper considerations).

[21] Finally, Father argues that the trial court abused its discretion when it awarded legal custody over Child to Mother. He contends that, because Mother did not request sole legal custody and because neither party put the issue of a modification of legal custody before the court, the court was barred from modifying legal custody. In support, Father cites Madden v. Phelps, 152 N.E.3d 602, 610 (Ind. Ct. App. 2020). In Madden, we held that the trial court abused its discretion when it modified legal custody of the parties’ child because neither party had specifically requested the modification. Id. at 612. Likewise, here, neither Father nor Mother requested a modification of legal custody over Child. [22] However, in Ellenburg v. Kropp, 175 N.E.3d 1208 (Ind. Ct. App. 2021), trans. denied, we declined to follow Madden. In Ellenburg, we held as follows:

Indiana Code section 31-17-2-15 states that “In determining whether an award of joint legal custody under section 13 of this chapter would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody.” Further, Indiana Code section 31-17-2-15 enumerates [ ]one of the factors for courts to consider[ as] “whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare.” Despite the fact that the parties might have previously agreed on joint legal custody, we believe that Father's pleadings, asking that the court “make a modification of current custody” and “make appropriate orders with respect to custody and parenting time [․] and for all other appropriate relief[,]” Appellant's App. Vol. II, pp. 17-18, sufficiently place the issue of legal custody before the court. Further, Mother asked for a change in physical custody in her pleadings, bringing the issue of custody before the court. In addition, the parties presented arguments and evidence which put into question the issue of legal custody. So, as with all custody considerations, the juvenile court was tasked with, above all, determining the “best interest of the child,” Ind. Code § 31-17-2-15, despite any evidence of an agreement by the parties as to legal custody. Therefore, we cannot say that the trial court erred by awarding sole legal custody to Father.

175 N.E.3d at 1212.

[23] Likewise, here, in her petition to modify custody, Mother requested that the court “modify the orders on custody and parenting time” to align with Child's “best interest[.]” Appellant's App. Vol. 2, p. 41. And, during the October 2024 hearing, Mother requested joint legal custody, which put the issue of legal custody squarely before the court. We cannot say that the trial court abused its discretion when it awarded Mother legal custody over Child.

[24] In sum, the trial court had discretion to enter the temporary modification of custody in March 2024. Mother presented sufficient evidence to show a change of circumstances to support a change of custody in October 2024 based on changes since the October 2022 custody order and since the March 2024 custody order. And the trial court did not abuse its discretion when it modified legal and physical custody over Child.

Issue Two: Parenting Time Guidelines

[25] Father contends that the trial court abused its discretion when it deviated from the Guidelines without an adequate explanation. As this Court has explained:

A trial court's primary consideration in parenting time disputes is the child's best interests. Hazelett[ v. Hazelett], 119 N.E.3d [153,] 162 [(Ind. Ct. App. 2019)]. Parenting time decisions are generally committed to the sound discretion of the trial court. In re B.J.N., 19 N.E.3d 765, 769 (Ind. Ct. App. 2014). We, therefore, review parenting time decisions for an abuse of discretion. Id. A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances before the court or the court has misinterpreted the law. Id. In reviewing the trial court's parenting time decision, we will not reweigh the evidence or judge the credibility of the witnesses. Gomez v. Gomez, 887 N.E.2d 977, 983 (Ind. Ct. App. 2008).

INDIANA CODE § 31-14-14-1, which governs parenting time following a determination of paternity, provides that “[a] noncustodial parent is entitled to reasonable parenting time[.]” I.C. § 31-14-14-1(a). There is a presumption that the IPTG apply in all child custody cases. Ind. Parenting Time Guidelines Preamble (C)(3). The commentary to the IPTG explains that the IPTG “represent the minimum time a noncustodial parent should spend with the child when the parties are unable to reach their own agreement.” Ind. Parenting Time Guidelines Preamble Commentary 2. “Deviations from [the IPTG] ․ by the court that result in parenting time less than the minimum set forth [in the IPTG] must be accompanied by a written explanation indicating why the deviation is necessary or appropriate in the case.” Ind. Parenting Time Guidelines Preamble (C)(3).

Hurst v. Smith, 192 N.E.3d 233, 245 (Ind. Ct. App. 2022).

[26] First, to the extent Father contends that the trial court was required to show that a deviation from the Guidelines was required to prevent physical or emotional harm to Child, Father is mistaken. Those findings are only required where a trial court restricts parenting time, such as ordering supervised visitation. See, e.g., Randolph v. Randolph, 210 N.E.3d 890, 897-98 (Ind. Ct. App. 2023). Here, the trial court was only required to explain why the deviation was necessary or appropriate. See Hurst, 192 N.E.3d at 245. Father's reliance on case law pertaining to restrictions on parenting time is, therefore, misplaced.

[27] The trial court awarded Father parenting time as follows:

23. No part of the Indiana Parenting Time Guidelines shall apply in this matter.

24. The deviation from the Indiana Parenting Time Guidelines is based upon the Court's factual findings set forth above.

25. Petitioner-father shall have parenting time with the child every other weekend from Friday at 6 p.m. until Sunday at 6 p.m. beginning Friday, October 18, 2024.

26. Petitioner-father shall have parenting time every Wednesday evening from 5 p.m. until 7 p.m. beginning October 16, 2024.

27. Petitioner-father shall have Father's Day weekend each year, even if it is not his weekend, and Respondent-mother shall have Mother's Day weekend each year, even if it is not her weekend.

28. Petitioner-father shall have Easter, Thanksgiving, and Christmas Day each year from 1 p.m. until 6 p.m.

Appellant's App. Vol. 2, pp. 16-17.

[28] While the trial court could have been more explicit in its reasons for the deviation, we cannot say that the trial court did not adequately explain its reasons for the relatively minor deviation from the Guidelines. Father has not shown that the trial court abused its discretion on this issue.

[29] For all these reasons, we affirm the trial court's order modifying custody of Child and awarding Father limited parenting time.

[30] Affirmed.

FOOTNOTES

1.   Mother has three minor children, including Child, Child's younger half-brother, and Child's older half-brother.

Mathias, Judge.

Judges Foley and Felix concur. Foley, J., and Felix, J., concur.