Jacob A. Key, Appellant-Petitioner v. Jamie L. Key, Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] Jacob A. Key (“Father”) appeals the trial court's order modifying his parenting time with his minor children: M.K., born July 4, 2011, and twins L.K. and T.K., born July 28, 2015 (collectively, “the Children”). We affirm in part, reverse in part, and remand with instructions.

Issues

[2] Father raises four issues for our review, which we revise and restate as the following three issues:

1. Whether the trial court erred when it modified his parenting time.

2. Whether the trial court erred when it ordered joint legal custody but then gave Jamie L. Key (“Mother”) the ability to make any final decision related to the Children if the parties disagree.

3. Whether the court erred when it ordered Father to not discuss any of the Children's parentage.

Facts and Procedural History

[3] Father and Mother were married. Father had a child, M.K., from a previous marriage, and Mother adopted M.K. when he was five years old. Mother then gave birth to the twins while married to Father. On November 19, 2021, Father filed a petition to dissolve his marriage to Mother. On February 10, 2022, the court entered its order dissolving the marriage. The court granted Mother and Father joint legal custody of the Children, and it granted Mother primary physical custody. The court also ordered that Father exercise parenting time in excess of the minimum provided by the Indiana Parenting Time Guidelines (“the Guidelines”) as follows: on alternating weekends from after school on Friday until Sunday at 5:00 p.m.; on Wednesdays each week from after school until Thursday morning; and, on weeks preceding Mother's weekends, on Wednesday from after school until Friday morning.

[4] On May 24, 2023, Father filed a petition to modify custody and alleged that that Mother “drank and drove with the Children in the vehicle,” had been “in a myriad of relationships with men,” allowed M.K. “to operate her motorized vehicle on a public roadway,” and “communicated threats to [M.K.] in the event he shares anything concerning regarding her lifestyle” with Father. Appellant's App. Vol. 2 at 91. In his motion, Father sought sole legal and physical custody of the Children.

[5] Then, on June 27, 2023, Mother filed a counter petition to modify custody and alleged that Father “continue[d] to harass” her, provided the Children with electronics “in order to monopolize the Mother's time,” has a history of domestic violence and mental health issues, and “speaks negatively about the Mother” in the presence of the Children. Id. at 95-96. Mother requested sole legal custody and that Father's parenting time be reduced to the amount provided in the Guidelines.

[6] The court appointed a Guardian Ad Litem (“GAL”). In her first report, filed on November 4, 2023, the GAL noted that the twins “want to see each parent as much as possible. One likes the current schedule, while the other would like to see Father more.” Id. at 111. But the GAL continued that, “[i]n speaking with [the twins], there is some confusion as to which house they go to and when. Both indicated they sometimes are confused whether they are bus-rider or car-rider on a given day.” Id. The GAL concluded that “the parties should continue [to] have joint legal custody,” but she did “not believe” that “shared (50-50) custody and parenting time” would be appropriate. Id. at 121. She then recommended that Mother have “primary physical custody,” with Father getting six overnights in a fourteen-day period. Id. at 124.

[7] On October 10, 2024, the GAL filed a supplemental report. The GAL again noted that two of the Children expressed “some confusion as to which house they will go to and when.” Id. at 137. The GAL then reiterated her conclusion that Father's request for “shared (50-50) custody and parenting time” would not “be appropriate.” Id. at 139. And she did “not recommend any changes” to her previous recommendations as they pertained to custody and parenting time. Id.

[8] The court held a multi-day fact-finding hearing on Mother's and Father's petitions. During the hearing, the GAL testified that her recommendations were for Mother and Father to “continue to have joint legal custody.” Tr. Vol. 2 at 37. She further testified that the twins had “express[ed] some confusion” about which house they would go to on a given day. Id. And she testified that she did not recommend a change in “legal custody or that the primary custody be changed at this point.” Id. at 39. Similarly, Father testified that “the twins can get confused sometimes” and asked for “shared physical” custody, which he believed would provide a less confusing schedule. Id. at 126.

[9] At one of the hearings, Father acknowledged that he had resigned from his place of employment and that he and the Children had been without health insurance for a couple of months. He further acknowledged that, one night while the Children were in his care, he had experienced a problem with his heart and had to be taken to the hospital via ambulance but that he did not notify Mother. And, on the evening prior to the final day of the fact-finding hearing, Father and his wife were both arrested on charges of felony fraud while the Children were in their care.

[10] Following the fact-finding hearing, the court entered findings of fact and conclusions thereon denying Father's motion to modify custody and granting Mother's in part. In particular, the court found that none “of [Father's] allegations were proven in the evidentiary hearings by admissible evidence.” Appellant's App. Vol. 2 at 19. The court further acknowledged Father's recent arrest for criminal charges, Mother's testimony that there was a safety concern in one of the bedrooms at Father's house, that Father had left his employment, and that Father had been taken to the hospital while the Children were in his care. The court then found that the parties had not presented “sufficient evidence of any substantial continuing changes of circumstances to warrant a change in custody, nor does the Court find that a change in custody would be in the children's best interests.” Id. at 22.

[11] However, the court found “that a modification of Petitioner/Father's parenting time would be in the best interests of the Children” because the “current parenting time schedule involves a lot of confusion for the minor children.” Id. Accordingly, the court ordered Father to have parenting time “in accordance with” the Guidelines, which amounted to ninety-eight overnights per year. Id. The court also ordered Father to “not comment on any of the children's parentage[.]” Id. Finally, the court ordered the parties to “continue to share joint legal custody,” but gave Mother the authority “to make the final decision” if Mother and Father “are unable to mutually agree on decisions[.]” Id. at 25. This appeal ensued.¹

Discussion and Decision

Standard of Review

[12] Father appeals the court's order modifying his parenting time. Here, the trial court entered findings of fact and conclusions thereon supporting its order. Pursuant to Indiana Trial Rule 52(A), the reviewing court will not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Steele-Giri v. Steele (In re Marriage of Steele-Giri), 51 N.E.3d 119, 123 (Ind. 2016).

Where, as here,

a trial court enters findings sua sponte, the appellate court reviews issues covered by the findings with a two-tiered standard of review that asks whether the evidence supports the findings, and whether the findings support the judgment. Any issue not covered by the findings is reviewed under the general judgment standard, meaning a reviewing court should affirm based on any legal theory supported by the evidence.

Id. at 123-24 (citation omitted).

[13] Moreover,

there is a well-established preference in Indiana for granting latitude and deference to our trial judges in family law matters. Appellate courts are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence. On appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal. Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment.

Id. at 124 (citations and quotation marks omitted).

Issue One: Modification of Parenting Time

[14] Father first contends that the court erred when it modified his parenting time. On this issue, Father first asserts that the modification of his parenting time was so substantial that it amounted to a de facto modification of physical custody such that the court “modified custody when simultaneously finding no substantial change of circumstances.” Appellant's Br. at 17.

[15] To support his argument, Father relies on this Court's opinion in In re Marriage of Julie C. v. Andrew C., 924 N.E.2d 1249 (Ind. Ct. App. 2010). In that case, following the dissolution of their marriage, the mother was granted primary physical custody of the children with the father afforded parenting time. The trial court then subsequently increased the father's parenting time so that he received seven overnights per two-week period. On appeal, the mother asserted that the court's modification of parenting time was a de facto custody modification. We agreed. In so holding, this Court stated that “an increase to fifty percent of all parenting time amounts to a modification of physical custody.” Id. at 1256. In other words, because “the trial court increased [the father's] parenting time to seven overnight stays during any given two-week period, it ordered a de facto modification of custody to joint physical custody.” Id.

[16] Relying on that case, Father asserts that the reduction of his parenting time from five days to two days per two-week period is a de facto change in physical custody. However, Julie C. is clearly distinguishable. In that case, the mother was granted primary physical custody, but the court later awarded the father equal parenting time. The result of father's increase in parenting time was that he had equal parenting time with the mother. The situation was no longer one where the mother had primary physical custody as originally ordered; she and the father now enjoyed equal time with the Children. The effect of that order was to change from the mother having primary physical custody to both parents having joint physical custody.

[17] Here, we acknowledge that the court reduced Father's parenting time by several days per two-week period. However, this is not a situation where the parties went from an unequal amount of time with the children to an equal amount. And the custody arrangement did not change as a result of the modification of Father's parenting time. Indeed, the court awarded Mother primary physical custody of the Children in the original dissolution decree, and Mother continued to have primary physical custody of the Children following the modification. As such, the court's order modifying Father's parenting time was not a de facto change in physical custody.

[18] Still, Father contends that, even if the court merely ordered a change in parenting time, “[t]here is simply no evidence to support” the court's finding that the change in parenting time was in the Children's best interests. Appellant's Br. at 18. In reducing Father's parenting time, the court noted that the “current parenting time schedule involves a lot of confusion for the minor children.” Appellant's App. Vol. 2 at 22. On appeal, Father contends that there is no evidence that the change in parenting time was in the Children's best interests because there was no evidence to support the court's finding that the Children are confused by the schedule.

[19] However, in her original report, the GAL reported that “there is some confusion” by the twins “as to which house they go to and when” and that both “indicated they sometimes are confused whether they are a bus-rider or car-rider on a given day.” Id. at 111. Similarly, in the GAL's supplemental report, she stated that the twins had expressed “some confusion as to which house they will go to and when.” Id. at 137. The GAL then reiterated this concern at the hearing when she testified that the twins had “express[ed] some confusion” about where they were going. Tr. Vol. 2 at 37. Further, and notably, even Father acknowledged that “the twins can get confused sometimes.” Id. at 126. As such, contrary to Father's argument on appeal, there is evidence to support the court's finding that the Children were confused by the prior schedule and that a reduction of Father's parenting time to the written guidelines was in their best interests.

Issue Two: Legal Custody

[20] Father next contends that the court erred when it ostensibly maintained the parties’ joint legal custody arrangement but then granted Mother the authority to make all decisions in the event the parties were to disagree. Father argues that this was a de facto modification of legal custody. We agree.

[21] According to Indiana Code Section 31-9-2-67, “joint legal custody” means “that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care, and religious training.” Our Court has interpreted that to mean that, “[w]hen the parties have joint legal custody, neither party has any more say than the other party with regard to how the child (or children) are raised.” Russell v. Russell, 223 N.E.3d 708, 714 (Ind. Ct. App. 2023) (emphasis added).

[22] Here, in its original dissolution decree, the court ordered that Mother and Father “shall share joint legal custody” of the Children and that the “parties shall consult with one another on the major issues concerning the children[’]s education, religious training and non-emergency medical treatment.” Appellant's App. Vol. 2 at 81. That initial order of joint legal custody properly gave the decision-making authority and responsibility to both parents equally.

[23] Then, in its order modifying Father's parenting time, the court purported to continue the order of joint legal custody. However, immediately following its order that Mother and Father “continue to share joint legal custody,” the court ordered that Mother “shall be entitled to make the final decision” in the event the parties cannot agree. Id. at 25. In essence, the court gave Mother more say than Father with regard to how the Children are raised. But, in a joint legal custody arrangement, “neither party” should have “more say than the other.” Russell, 223 N.E.3d at 714. Because the court gave one parent more say than the other, the court essentially modified its original order and awarded Mother sole legal custody.

[24] This Court has explained that “a trial court may not modify legal custody unless (1) the modification is in the best interests of the child and (2) there is a substantial change in one or more” statutory factors. Julie C., 924 N.E.2d at 1259. However, here, the court explicitly found that there was not “sufficient evidence of any substantial continuing changes of circumstances to warrant a change in custody, nor does the Court find that a change in custody would be in the children's best interests.” Appellant's App. Vol. 2 at 22.

[25] Given that the court found that modification of custody was not in the Children's best interests and that there had been no substantial change in circumstances, the court erred when it modified the award of joint legal custody to sole legal custody. We therefore reverse the portion of the court's order that gives Mother the final say and remand with instructions for the court to maintain the joint legal custody arrangement, with neither party having more say than the other.

Issue Three: Children's Parentage

[26] Finally, Father contends that the trial court erred when it ordered him to “not comment on any of the children's parentage[.]” Appellant's App. Vol. 2 at 22. Father maintains that the “trial court had no authority to muzzle [him] in discussing with [M.K.] his biological mother” because there was no evidence that “the Father discussing with his son his biological mother would threaten the life or health” of M.K.² Appellant's Br. at 22-23. We again agree.

[27] It is well settled that “the overarching policy goal of all family court matters involving children” is to “protect[ ] the best interests of those children.” Lambert v. Lambert, 861 N.E.2d 1176, 1180 (Ind. 2007). Here, the court prohibited Father from speaking about any of the Children's parentage—though this portion of the order clearly pertains to M.K. and his biological mother—without any indication that it would be harmful to M.K.

[28] Mother testified that she believed that M.K. was talking with his biological mother, which “upset” her. Tr. Vol. 3 at 86. And the GAL testified that she “feel[s] like the parents need to take a step back and both talk and communicate together about how they're going to proceed in addressing the issue” of M.K.’s curiosity about his biological mother. Id. at 121. However, there was no evidence presented, and the court did not make any findings, that Father discussing M.K.’s biological mother with him would cause any harm to M.K. or that prohibiting Father from discussing M.K.’s biological mother would be in M.K.’s best interests. Because there was no evidence that discussing M.K.’s biological mother would be harmful in any way to M.K., the court erred when it ordered Father not to comment on his parentage. As such, we reverse that portion of the court's order.

Conclusion

[29] The trial court's order reducing Father's parenting time was not a de facto modification of physical custody, and there is evidence in the record to support the court's modification. As such, we affirm the court's modification of Father's parenting time. However, the court erred when it ordered joint legal custody but then gave Mother the final say, so we reverse that portion of the court's order and remand with instructions for the court to maintain the parties’ joint legal custody arrangement with neither parent having more of a say than the other. Finally, the court erred when it prohibited Father from speaking about the Children's parentage. No evidence was presented to suggest that doing so was detrimental to the Children's best interests. We therefore affirm in part, reverse in part, and remand with instructions.³

[30] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Mother and Father each also filed several motions for rule to show cause alleging that the other had violated certain aspects of prior court orders. In its order, the court additionally ruled on those motions. For the majority of the motions, the court found that there was no evidence to support the motion. However, the court found Father in contempt for failing to pay child support and maintain health insurance. The court also found that Mother had willfully and intentionally violated a discovery order. Neither party appeals any of the court's rulings related to the motions for rule to show cause.

2.   Father does not make any argument that the court's limitation violated his First Amendment rights to free speech.

3.   In his Conclusion, Father asks this Court to “vacate the modification order all together.” Appellant's Br. at 24. However, as discussed in footnote 1, the court's order included rulings on several motions for rule to show cause, which Father does not appeal. In addition, the appealed order modified Father's child support obligation, which Father also does not appeal. Father has waived any argument pertaining to any portion of the appealed order not specifically challenged on appeal, and we affirm those portions of the order.

Bailey, Judge.

Judges Brown and Weissmann concur. Brown, J., and Weissmann, J., concur.