Travis Montgomery, Appellant-Petitioner v. Jennifer Montgomery, Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] During the marriage of Travis Montgomery (“Father”) and Jennifer Montgomery (“Mother”), they welcomed two children. When they divorced in 2023, they agreed to share joint legal custody. In 2024, at Mother's request, the trial court modified custody, granting sole legal custody to Mother. Father appeals, claiming the trial court erred by modifying legal custody. We affirm.

Facts and Procedural History 1

[2] Father and Mother were married in 2006. Their daughter, D., was born in 2008 and their son, J., was born in 2017. Father filed for dissolution of the marriage in 2022.

[3] In April 2023, the trial court approved the parties’ Mediated Agreement of Settlement and dissolved the marriage. With respect to custody, the parties agreed:

[I]t is in the best interest of their Minor Children that they share joint legal custody. The parties acknowledge joint legal custody requires the parties to consult with one another with respect to major decisions concerning their Minor Children's upbringing, including, but not necessarily limited, to his/her education, healthcare, and religion. It is the parties’ intention that all such decisions shall be jointly made in all non-emergency situations.

Appellant's App. Vol. 2 at 40. Father's parenting time was also set forth in the agreement. After the dissolution, Father maintained a residence in Indiana for parenting time purposes, but his primary residence was in Chicago, and he worked mostly in New York. The parties communicated extensively and almost exclusively through messages in the online “Our Family Wizard” co-parenting program.

[4] In February 2024, Father petitioned to modify legal custody. The parties successfully engaged in mediation and in April, the trial court approved an agreed entry (“2024 Agreed Order”) calling for the parties to continue to share joint legal custody of the children, with Mother to have primary physical custody of D. and the parties to share physical custody of J. The 2024 Agreed Order modified Father's parenting time with J. and left his parenting time with D. to D.’s discretion.²

[5] Within weeks of the trial court approving the 2024 Agreed Order, the parties began to file a series of motions related to custody and parenting time issues. On October 7, 2024, the trial court held a hearing on five pending motions: Father's Motion for Temporary Modification to Mediated Agreement; two Petitions for Rule to Show Cause filed by Father; Mother's Petition to Modify Legal Custody; and Father's Motion to Modify Custody and Parenting Time.

[6] Both Mother and Father stated communication between them was a big issue. Father acknowledged he and Mother “have some disagreements here on legal custody issues.” Tr. Vol. 2 at 24. For instance, Father wanted to enroll J. in a private school; Mother did not. Mother wanted J. to have counseling; Father did not. Father objected to some health, medication, and lifestyle decisions regarding D. Father described the “legal custody relationship” prior to the 2024 Agreed Order as “challenging,” but claimed “[a]bsolutely nothing” about it had changed since the order—it was “[s]till difficult.” Id. at 31. Father had threatened to call the police and DCS on Mother when she did not comply with his demands, claimed he was the lone “adult in the room,” and called himself “[c]lose” to perfect as a parent. Id. at 32, 70. Father called it a “fair summary” of his attitude that when Mother disagrees with him, he considers her to be “refus[ing] to co-parent” with him. Id. at 54.

[7] Mother testified the co-parenting relationship—which was not “fantastic” before the 2024 Agreed Order—had “completely unraveled” and had “gotten even worse.” Id. at 91–92. Mother had hoped she and Father could work together but felt Father opposed her “at every turn.” Id. at 92. She called the joint legal custody arrangement “a nightmare.” Id. at 97. Mother particularly did not believe it was appropriate for Father to participate in making decisions regarding D.’s education, health care, or religious and cultural upbringing when he was not spending any time with her. See id. at 92.

[8] The trial court ruled on all pending motions in a single order; the ruling at the heart of this appeal is the trial court's decision on Mother's Petition to Modify Legal Custody.³ The trial court found that “awarding Mother sole legal custody of the minor children is in the minor children's best interest” and granted Mother's petition for sole legal custody of the children. Appellant's App. Vol. 2 at 27.

Standard of Review

[9] “We review custody modifications for abuse of discretion with a preference for granting latitude and deference to our trial judges in family law matters.” In re K.I., 903 N.E.2d 453, 457 (Ind. 2009) (internal quotation omitted). “A child custody determination is very fact-sensitive.” Steele-Giri v. Steele, 51 N.E.3d 119, 125 (Ind. 2016). And trial judges are in the best position to judge facts, determine witness credibility, understand family dynamics, and “get a sense of the parents and their relationship with their children.” E.B.F. v. D.F., 93 N.E.3d 759, 762 (Ind. 2018) (quoting MacLafferty v. MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005)). They are in “a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). As an appellate court, we are in a poor position to look at a cold transcript and conclude the trial judge—who saw the witnesses, observed their demeanor, and scrutinized their testimony—did not properly understand the significance of the evidence. D.C. v. J.A.C., 977 N.E.2d 951, 956–57 (Ind. 2012). As a result, we will not reweigh the evidence or reassess witness credibility, and we view the evidence most favorably to the judgment. Best, 941 N.E.2d at 502.

The trial court did not abuse its discretion in granting sole legal custody to Mother.

[10] “In an initial custody determination, both parents are presumed equally entitled to custody.” In re Paternity of V.D., 226 N.E.3d 816, 827 (Ind. Ct. App. 2024). But a party seeking to modify custody bears the burden of demonstrating the existing custody order should be altered. Steele-Giri, 51 N.E.3d at 124. This is a more stringent standard than an initial custody determination because permanence and stability are considered best for the welfare and happiness of children. Id. Accordingly, after a trial court enters an initial custody order in a dissolution action:

(a) The court may not modify a child custody order unless:

(1) the modification is in the best interests of the child; and

(2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 ․ of this chapter.

(b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.

Ind. Code § 31-17-2-21 (1999). Under Section 8, the court must consider “all relevant factors,” including:

(1) The age and sex of the child.

(2) The wishes of the child's parent or 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 parent or parents;

(B) the child's sibling; and

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

(5) The child's adjustment to the child's:

(A) home;

(B) school; and

(C) community.

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

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

I.C. § 31-17-2-8 (2017) (“Section 8 factors”).⁴ Other “relevant factors” include those to be considered when making an initial award of joint legal custody:

(1) the fitness and suitability of each of the persons awarded joint custody;

(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare;

(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) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;

(5) whether the persons awarded joint custody:

(A) live in close proximity to each other; and

(B) plan to continue to do so; and

(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.

I.C. § 31-17-2-15 (2008) (“Section 15 factors”); see J.W. v. M.W., 77 N.E.3d 1274, 1277–78 (Ind. Ct. App. 2017) (stating that when considering a change from joint legal custody to sole legal custody, the court “must determine whether there has been a substantial change in one or more of the factors listed in [Section 15], in addition to considering any substantial change to the factors in [Section 8], as is typically necessary for physical custody modifications”). When evaluating a legal custody arrangement, 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.” I.C. § 31-17-2-15.

[11] Father argues the trial court erred in modifying legal custody because the trial court (1) did not analyze the statutory factors and (2) did not identify a substantial change in one or more of the factors warranting modification. He also argues the evidence does not support modification of legal custody given that just six months prior, the parties had agreed to continue joint legal custody.

[12] In this case, the trial court did not explicitly analyze the Section 8 or 15 factors, nor did it specifically identify which factor or factors had substantially changed since the 2024 Agreed Order. But there was no Trial Rule 52(A) request for findings and therefore the trial court had to consider the statutory factors, but it was not required to make specific findings about them.⁵ See Hecht v. Hecht, 142 N.E.3d 1022, 1031 (Ind. Ct. App. 2020). And although the court did not specifically mention Section 8 or 15 in its order, we presume trial courts know and follow the law. Ramsey v. Ramsey, 863 N.E.2d 1232, 1239 (Ind. Ct. App. 2007). We disregard this presumption only when the trial court's findings lead us to conclude there is an unjustifiable risk the trial court did not follow the applicable law. Id. And here, we are not led to that conclusion.

[13] The trial court's order demonstrates that it considered the relevant statutory factors. The trial court found communication between the parties is “difficult and strained,” explaining “Father has a tendency to be overbearing in his communication when the information he receives is not what he wants to hear. Mother tends to withdraw from communication with Father due to the antagonistic nature of Father's communication.” Appellant's App. Vol. 2 at 25. The trial court found Mother “routinely provides information to Father regarding child related issues” but Father is “antagonistic, accusatory and conflicting in his responses when the information conveyed is not what he wants to hear. In short, [Father] argues for the sake of arguing.” Id. at 24. The trial court also found “Father is inconsistent in his requests and demands,” “Father appears to be disagreeable for the sake of being disagreeable,” and “Father has threatened to call the police, call DCS, [and] has sent [to Mother] screenshots of payment of attorney fees ․ all in attempts to bully Mother.” Id. at 26–27.

[14] In addition to evidence regarding the parties’ breakdown in communication, there was evidence from which the trial court could glean information about the interaction and interrelationship of the children—but especially D.—with Mother and Father; the mental health of the individuals involved;⁶ D.’s wishes; and the parties’ proximity to each other's homes. See I.C. §§ 31-17-2-8(4), -8(6); 31-17-2-15(3)–(5). The trial court found there was no reason to believe Mother would not continue to keep Father informed about decisions related to the children if custody were modified and importantly determined awarding Mother sole legal custody was in the children's best interests.

[15] Section 15 factor (2)—whether parents are willing and able to cooperate in advancing the child's welfare—is of particular importance in making legal custody determinations. Milcherska v. Hoerstman, 56 N.E.3d 634, 641 (Ind. Ct. App. 2016). Where “the parties have made child-rearing a battleground, then joint custody is not appropriate.” Periquet-Febres v. Febres, 659 N.E.2d 602, 605 (Ind. Ct. App. 1995), trans. denied.

Even two parents who are exceptional on an individual basis when it comes to raising their children should not be granted, or allowed to maintain, joint legal custody over the children if it has been demonstrated ․ that those parents cannot work and communicate together to raise the children. The issue in determining whether joint legal custody is appropriate is not the parties’ respective parenting skills, but their ability to work together for the best interests of their children.

Carmichael v. Siegel, 754 N.E.2d 619, 636 (Ind. Ct. App. 2001) (internal citation omitted). The primary concern with respect to legal custody is the welfare of the children and not the wishes of the parents. Id. at 635.

[16] The trial court, exercising its exclusive province to weigh the evidence and judge the parties’ credibility, was entitled to give Mother's testimony that communication had “completely unraveled” since the 2024 Agreed Order more weight than Father's testimony that nothing had changed. Tr. Vol. 2 at 91.⁷ And because the hostility between Mother and Father and their inability to communicate and cooperate for the benefit of their children is plain from the testimony of both parties and from their written communications with each other, it cannot seriously be disputed that child-rearing has become a battleground or that joint legal custody of the children is no longer in the children's best interests.

Conclusion

[17] Applying our highly deferential standard of review in family law matters, we affirm the trial court's decision to modify custody and grant sole legal custody to Mother.

[18] Affirmed.

FOOTNOTES

2.   Although distance was a factor, Father exercised significant parenting time with J. both before and after the 2024 Agreed Order. For reasons unclear from the record, D. had not been participating in parenting time with Father for some time. The 2024 Agreed Order left Father's parenting time schedule with D. as described in the Mediated Agreement of Settlement, but D. was “not required to participate in that parenting time unless she elects to do so.” Id. at 72.

3.   The remainder of the motions were denied.

4.   The two remaining Section 8 factors are inapplicable to this case and have been omitted.

5.   Having said that, such findings are helpful to the parties and to a reviewing court. Findings, “especially when they cite to the relevant statutes, give us confidence that the trial court considered the requisite factors when modifying ․ custody.” Matter of Paternity of A.R.S., 198 N.E.3d 423, 431 (Ind. Ct. App. 2022). Further, effective July 1, 2025, a trial court entering a custody order—defined to include a final order modifying custody—must include the court's “findings of fact and conclusions of law on which the custody order is based.” I.C. § 31-17-2-8.2 (2025).

6.   D. has mental health needs and a history of self-harm, and she takes medications prescribed by her mental health providers.

7.   Moreover, as Mother aptly points out, after the 2024 Agreed Order, Father filed multiple petitions seeking relief because of joint custody disputes (including his own petition for modification of physical custody), alleging there had been a substantial change in circumstances warranting modification.

Kenworthy, Judge.

Judges Foley and Scheele concur. Foley, J., and Scheele, J., concur.