IN RE: the PATERNITY OF T.R.O. (2025)

MEMORANDUM DECISION

[1] Diana Dimic (“Mother”) appeals the denial of her petition to modify custody and parenting time where the trial court denied the petition without a hearing, despite Mother's request for a hearing. We address the dispositive issue of whether Mother presented prima facie error in the denial of her petition without a hearing. Identifying prima facie error, we reverse and remand for a hearing.¹

Facts and Procedural History

[2] Mother has a child, T.R.O. (“Child”), with Joseph Michael O'Connell (“Father”). The trial court entered a custody order on March 14, 2022, under which Mother was provided with parenting time during major holidays and portions of Child's school vacations.² On March 8, 2024, the trial court modified its custody order. On January 3, 2025, Mother filed a verified petition to modify custody of Child, asserting that “Father's behavior is not in support of [Child's] best interests and that Father has neglected his custodial duties and continues to neglect [Child's] needs and wants.” Appellant's App. Vol. II p. 48. Mother concurrently filed a supporting memorandum along with a motion “request[ing] this matter be set for Hearing.” Id. at 52. On January 23, 2025, Father filed a verified response and a memorandum in which he denied Mother's allegations. On February 5, 2025, Mother filed her verified reply.

[3] On February 24, 2025, the trial court denied Mother's petition to modify. In its order, the court did not acknowledge or address Mother's request for a hearing. Rather, it denied Mother's petition on the basis that “Mother has not met her burden to show a substantial change or that her request is in the child's best interest.” Id. at 23. Mother now appeals.

Discussion and Decision

[4] We note at the outset that Mother represents herself on appeal. As the Indiana Supreme Court has explained, “a pro se litigant is held to the same standards as a trained attorney and is afforded no inherent leniency simply by virtue of being self-represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). We also note that Father did not file an appellee's brief. Under the circumstances, we need not undertake the burden of developing arguments on Father's behalf; instead, we reverse upon a showing of prima facie error. See Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014). Prima facie error in this context is defined as error “at first sight, on first appearance, or on the face of it.” Id. (quoting Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)).

[5] “Child custody proceedings implicate the fundamental relationship between parent and child, so procedural due process must be provided to protect the substantive rights of the parties.” Bixler v. Delano, 185 N.E.3d 875, 878 (Ind. Ct. App. 2022). Among Mother's appellate arguments is that the trial court erred by denying her petition to modify child custody without holding a hearing, in violation of her right to due process. We conclude that Mother identified prima facie error in this regard. We are unaware of any specific requirement to hold a hearing when denying a petition to modify child custody. However, we have observed that “when such an important issue as the custody of children is involved,” the trial court can generally modify child custody only after a party has petitioned to modify, the other party has notice, and “a proper evidentiary hearing is held at which both parties may be heard and the trial court fully apprised of all necessary information regarding change of circumstances and a child's best interests before deciding whether a modification should be ordered.” Bailey v. Bailey, 7 N.E.3d 340, 344 (Ind. Ct. App. 2014).

[6] Here, the trial court did not modify custody without holding a hearing. Rather, the trial court denied Mother's petition to modify custody without holding a hearing and without acknowledging, or in any way addressing, Mother's motion for a hearing. In the end, the trial court proceeded to resolve Mother's petition to modify based solely on the content of the verified filings, where neither party consented to summary disposition of the petition. Under the circumstances, we are unable to discern whether the trial court intended to deny Mother's motion or simply overlooked the fact that Mother sought a hearing. In view of the fundamental nature of parental rights implicated in a child custody matter, and given the omission of any reference to Mother's pending request for an evidentiary hearing, we conclude that the trial court's denial of Mother's custody modification petition without a hearing constitutes prima facie error. We therefore reverse and remand for a hearing on Mother's petition.³

[7] Reversed and remanded.

FOOTNOTES

1.   Resolving the appeal on this basis, we do not address Mother's other appellate contentions.

2.   The content of the custody orders, which were not provided on appeal, is drawn from Mother's subsequent petition to modify custody.

3.   Portions of the trial court's written order suggest it viewed Mother's modification petition as frivolous. We note that, after conducting an evidentiary hearing, the court remains free to issue appropriate rulings for any frivolous filing, including ordering the payment of attorney's fees under Indiana Code section 31-14-18-2.

Foley, Judge.

Altice, C.J. and May, J., concur.