PHARES v. LAZO (2025)

MEMORANDUM DECISION

[1] Douglas Phares (“Father”) appeals the Vanderburgh Superior Court's order modifying physical custody over his minor daughter, A.P. (“Child”), in favor of Amber Lazo (“Mother”), who lives in South Carolina. Father raises three issues for our review, which we consolidate and restate as whether the trial court's modification of the parties’ custody over Child is clearly erroneous.

[2] We reverse.

Facts and Procedural History

[3] Father and Mother started dating in 2012. Mother gave birth to Child in 2014. Child has lived in Evansville with Father for Child's entire life. Father and Mother were married in 2020. A few weeks later, Mother, who was a member of the United States military, deployed to the nation of Qatar.

[4] While in Qatar, Mother “detach[ed] [her]self” from Father and Child. Tr. p. 59. Meanwhile, Father was Child's “primary provider and care giver.” Id. at 60. Mother returned to Evansville to live with Father and Child in late April or early May 2021. Mother filed her petition for dissolution of the marriage in November, and, in January 2022, she moved to North Carolina. Father and Child remained in Evansville.

[5] Father and Mother entered into a settlement agreement on the dissolution of their marriage, which the trial court accepted and entered as a decree of dissolution in January 2023. Pursuant to the decree, Father and Mother would have joint legal custody over Child; Father would have primary physical custody over Child; and Mother would exercise parenting time in accordance with the Indiana Parenting Time Guidelines where distance is a major factor. In May, Mother remarried.

[6] In August, eight months after the entry of the decree of dissolution, Mother filed an “Emergency Motion” to modify custody and parenting time. Appellant's App. Vol. 2, p. 36 (font modified). Mother's motion did not identify any specific factual or emergency basis in support of the motion, and the trial court did not take any action on the motion for three months, at which point the court simply ordered the parties to participate in mediation and then set a hearing on the motion for March 2024. The court would further continue that hearing date several times over another thirteen months. See id. at 11-12. Meanwhile, Mother requested the appointment of a guardian ad litem (“GAL”), which the trial court granted. Around that same time, Mother and her husband moved to South Carolina.

[7] Kelly Ferguson accepted the GAL appointment in April 2024 and met with Mother and Father that same month and Child shortly thereafter. In May, the GAL filed her recommendation that the current custody and parenting time arrangement be clarified to allow Father to have “final decision-making ability” as part of his legal custody over Child. Id. at 44 (bold font removed). The GAL otherwise recommended maintaining Father's primary physical custody over Child and Mother's parenting time. The GAL's May 2024 report did not state that Mother had alleged any change in circumstances or any emergency circumstances from between the entry of the decree of dissolution to the filing of Mother's Emergency Motion or from the filing of Mother's motion to the date of the GAL's report.

[8] In August 2024, Mother spoke with the GAL “regarding an emergen[cy] matter.” Id. at 48. In particular, Mother alleged that Father had become “aggressive and hostile” toward her, her husband, and Mother's two other teenage children, B.L. (who was fourteen years old) and T.L. (who was eleven or twelve at the time). Id. Mother also informed the GAL that Mother had contacted the Indiana Department of Child Services (“DCS”) regarding the conditions inside Father's home.

[9] The GAL met with B.L. and T.L., who reported that Father “was aggressive and angry” toward Mother and her husband and had “pushed” Mother's husband. Id. They also reported that Father's house was “disgusting and covered in cat poop and vomit.” Id. The GAL contacted the DCS investigator who had responded to Mother's report; that investigator informed the GAL that she had followed up on Mother's allegations, had “no concerns about [Father's] home conditions,” and had closed the matter as “unsubstantiated.” Id. at 49. In September, the GAL filed a supplemental report with the trial court without recommending any changes to her original recommendations.

[10] The trial court held the fact-finding hearing on Mother's Emergency Motion in April 2025, some twenty months after Mother had filed it. At that hearing, there was no dispute between the parties that Child has lived her whole life with Father in Evansville. There was no dispute that Child was well-adjusted to her school and community there and was a straight-A student. There was also no dispute that most of Mother's family lives in or near Evansville, including Child's half-sibling B.L. And there was no dispute that the original custody and parenting time arrangement was working well for Child.

[11] Mother instead argued that Father's home conditions were a substantial change in circumstances that justified the modification of custody. In support, she showed the GAL four pictures, which showed clothes on the ground in Father's home, spots of mold in his basement, and purported cat feces or vomit. The GAL concluded from those photos that any concerns they demonstrated “could easily be addressed,” and the GAL declined to agree with Mother that the photos demonstrated any “concern for a child to be in that environment[.]” Tr. p. 10.

[12] During her testimony, Mother stated that she took the four pictures over the course of a year beginning the summer after the entry of the decree of dissolution. Aside from the clothes on the floor, Mother was unsure what was actually depicted in the photographs, but she believed that there was “some sort of mold” in the basement because “there has always been issues with water” there. Id. at 53. She also believed there to have been some cat vomit in the basement, and she further testified that she once saw food on a nightstand in Father's bedroom. Mother's husband similarly testified that he thought Father's home “smell[ed] like cat feces, urine[,] ․ [and] mold,” and he had observed clothes “everywhere,” “cat puke” in the basement, and food and dishes “all over.” Id. at 38.

[13] Mother also argued that, in the summer of 2024 (about one year after she had filed the Emergency Motion), Father had been aggressive with her. On that issue, Mother testified that, after she had dropped Child off with Father following her exercise of parenting time, she and Father had gotten into an argument over the location of a key to a vehicle from their marriage. During the argument, according to Mother, her husband told them both to keep their voices down, and Father “curse[d]” and “yell[ed]” at Mother's husband in response. Id. at 55. As they were leaving Father's residence, B.L., who was with Mother, “said something” to Father, and Father “said something aggressive back to her ․” Id. Mother's husband added that Father had “scream[ed] in [his] face” during the incident and “spat on [him] twice.” Id. at 36.

[14] Mother also asked the trial court to modify the custody order because Father co-sleeps with Child. During the GAL's testimony, Mother asked if the GAL would have “any concerns [with] a female child of nine or ten years of age sleeping with a male father,” as Child does with Father. Id. at 12. The GAL noted that she did not “particularly care for any parents co-sleeping with their children” but that doing so was “not innately inappropriate.” Id. The GAL also noted that Father is legally blind and Child also has a serious eye condition.

[15] Mother further asked the GAL about Child's medical history. The GAL noted that Child had not seen a dentist since 2020, well before the dissolution of the marriage. The GAL noted that, while she had recommended in her May 2024 report that Child participate in regular therapy, she did not know if Child had yet participated in any such therapy, and she recognized that Father's blindness creates transportation issues.

[16] Finally, Mother argued that modification of custody over Child was warranted so Child could spend more time with her half-sibling T.L., who had recently moved into Mother's home in South Carolina. Mother testified that, when Child spends parenting time with Mother and T.L. is also present, the two are like “peas in a pod.” Id. at 51. Mother acknowledged that Child's older half-sibling B.L. lives with her father near Evansville.

[17] Following the fact-finding hearing, the trial court granted Mother's motion for modification of custody. In relevant part, the court found and concluded as follows:

The Court finds that there has been a substantial and continuing change in circumstances to warrant a modification of custody, parenting time, and child support. Specifically:

a. The unsuitability of Father's residence, including mold, animal feces and vomit, rotting food, clothing, trash, and assorted clutter,

b. Co-sleeping with Child,

c. Lack of scheduling necessary dental and counseling appointments for the Child,

d. Father's anger and outburst during the parenting exchange, and

e. The importance of an established relationship between Child and her half-siblings.

Appellant's App. Vol. 2, p. 18. The remainder of the trial court's order discusses the modified parenting time and child support arrangements.

[18] This appeal ensued.

Discussion and Decision

[19] Father appeals the trial court's modification of physical custody and parenting time over Child. Where, as here, the trial court's judgment is supported by findings of fact and conclusions thereon following an evidentiary hearing, we will not set aside the trial court's judgment unless it is clearly erroneous. Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. D.C. v. J.A.C., 977 N.E.2d 951, 953 (Ind. 2012). We will neither reweigh the evidence nor assess the credibility of the witnesses, and our review is constrained to the evidence most favorable to the judgment. Id. at 954.

[20] Our Supreme Court has further made clear that

there is a well-established preference in Indiana “for granting latitude and deference to our trial judges in family law matters.” In re Marriage of Richardson, 622 N.E.2d 178 (Ind.1993). 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.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002) (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). “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.” Id. ․

Steele-Giri, 51 N.E.3d at 124.

[21] Modifications of child custody orders are governed by Indiana Code section 31-17-2-21 (2024), which provides:

(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 [Indiana Code] section [31-17-2-8] and, if applicable, section [31-17-2-8.5] ․

(b) In making its determination, the court shall consider the factors listed under [Indiana Code] section [31-17-2-8] ․

(c) The court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described by [Indiana Code] section [31-17-2-8] and, if applicable, section [31-17-2-8.5] ․

And Indiana Code section 31-17-2-8 identifies the following nonexhaustive list of relevant factors in considering the best interests of the child:

(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.

(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 8.5(b) of this chapter.

(9) A designation in a power of attorney of:

(A) the child's parent; or

(B) a person found to be a de facto custodian of the child.

[22] The party seeking to modify custody over a child bears the burden of demonstrating the existing custody arrangement should be altered. Steele-Giri, 51 N.E.3d at 124. In particular, that party must show both that the proposed modification is in the best interests of the child and also that there has been a “substantial change” in the circumstances underlying the original custody order. I.C. § 31-17-2-21. Indeed, the Indiana Code affirmatively creates a “more stringent standard” to support a change in custody as opposed to an initial custody determination because an initial custody determination carries no presumption of custody for either parent. Steele-Giri, 51 N.E.3d at 124 (quotation marks omitted). However, once an initial custody determination has been made, it establishes permanence and stability for the child, both of which are generally considered “best for the welfare and happiness of the child” and accordingly require a substantial change in circumstances to modify. Id. (quotation marks omitted).

[23] We agree with Father that the trial court's modification of the parties’ custody over Child is clearly erroneous. The central question in any placement decision is focused on the best interests of the child, and at no point in its modification order did the trial court affirmatively consider Child's best interests. Neither does the record demonstrate that the parties disputed that permanence and stability for Child favored her continued placement with Father. See id. Nor did the parties dispute that Child was well adjusted to her home, school, and community in Evansville, which is an essential concern for a child of Child's age. See I.C. § 31-17-2-8(5). We would expect that any modification order uprooting a child from her lifelong home, community, and school and her lifelong parental custodian would explain why such a modification was in the child's best interests.

[24] Further, we are not persuaded that Mother's evidence to the trial court demonstrated a substantial change in circumstances from the facts that were known at the time of the initial custody determination. There was no evidence presented to the trial court that the conditions of Father's home were somehow different than what they were at the time of the initial custody decision. Indeed, in support of her modification request, Mother acknowledged that Father's basement has long had water issues. And, regardless, the trial court's decision to remedy less-than-ideal cleanliness issues by removing the Child from her lifelong home and community and placing Child with Mother in South Carolina was a heavy-handed solution that, if appropriate, needed more of an explanation than a bulletpoint.

[25] We are also not persuaded that Father's “anger” toward Mother, her husband, and B.L. justified the court's modification decision. Appellant's App. Vol. 2, p. 18. While we do not condone Father's behavior, there was no evidence presented that this was more than a one-time occurrence. There was also no evidence presented as to how the aggressive behavior started; Mother opaquely testified only that she and Father had been arguing, and Mother's husband testified that he came onto the scene after the fact.

[26] Mother's evidence regarding Child's dental and therapy appointments, and her assertions regarding Child's relationships with her half-siblings, likewise do not support the trial court's judgment. We encourage Father to set necessary appointments for Child, but the record is clear that Child's lack of dental care was a known fact at the time of the initial custody decision. The evidence was also undisputed that Father is legally blind and has transportation issues; at the time of the fact-finding hearing on Mother's modification request, about one year had passed since the GAL had recommended Child participate in regular therapy. Further, there was no evidence presented regarding what opportunities for regular therapy were financially realistic, or that Mother would be in a position to provide Child with any such therapy. As regards Child's relationship to her half-siblings, B.L. lives near Evansville, and the evidence was undisputed that Child and T.L.’s relationship was just fine under the initial custody arrangement.

[27] The last basis for the trial court's modification order was the court's apparent disdain for Father co-sleeping with Child. But the GAL's testimony that there was nothing “innately inappropriate” with them co-sleeping was undisputed, as was the evidence that both Father and Child suffer from serious sight conditions. Tr. p. 12. Without more, this single fact was not a reasonable basis upon which to justify the modification of the parties’ custody over the Child.

[28] Also unaddressed by the trial court is an obvious reality: Mother's August 2023 “Emergency Motion” for the modification of custody, filed just eight months after the initial custody order, was less of an emergency motion and more of a motion looking for an emergency. The trial court did not treat Mother's motion as an emergency and repeatedly continued the hearing on her motion over about twenty months. And, more critically, once the court did hold an evidentiary hearing on Mother's motion, the court did not assess whether the evidence presented represented facts unknown at the time of or changed since the initial custody order, nor did the court clearly assess whether Mother's modification request was in Child's best interests based on the totality of the circumstances. Accordingly, and on the record before us in this case, the trial court's modification of the parties’ custody over Child is clearly erroneous.

[29] For all of these reasons, we reverse the trial court's judgment modifying the parties’ custody over Child.

[30] Reversed.

Mathias, Judge.

Vaidik, J., and Pyle, J., concur.