Funmilola Grace Olowoyo-Sherrod, Appellant-Respondent v. Francis J. Tincher, Appellee-Petitioner (2025)

MEMORANDUM DECISION

Case Summary

[1] Funmilola Grace Olowoyo-Sherrod (Mother) appeals the trial court's order modifying physical custody of N.T. (Child) in favor of Francis Tincher (Father) and imposing a new parenting time schedule. Specifically, the court ordered Parents to share joint physical custody based on a parenting time schedule that does not afford Mother any weekend time with Child. Finding the trial court did not abuse its discretion, we affirm its modifications of custody and parenting time.

Facts and Procedural History

[2] Mother and Father (collectively, Parents) have one child together, N.T., who was born on April 18, 2022. Father resides with his wife in a single-family home in Huntington and is employed as an electrician. Mother lives in a townhome in Indianapolis and works from home as a security analyst.

[3] In October 2022, the trial court entered an order establishing paternity, custody, parenting time, and child support. The court ordered Parents to share legal custody of Child for issues related to education, religion, and healthcare, with Mother having the final say if the parties could not agree. It awarded Mother primary physical custody, and once Child turned nine months old, Father was to “have parenting time alternating weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m. with mid-week on Thursdays for four [ ] hours.” Appellant's Appendix Vol. 2 at 42.

[4] Following various filings, including Mother's petition to modify parenting time and Father's request that Mother be held in contempt, the court held a hearing in March 2023, and issued an order on April 4, 2023. That order stated, in relevant part,

The [October 2022] Order on parenting time shall be modified as follows. [Father's] midweek visit shall occur on the Friday of the weeks that he does not have weekend parenting time, from 5 p.m. to 9 p.m. All other terms relating to parenting time shall remain as provided in the Order.

Id. at 51 (emphasis added). The court also found Mother in contempt for “intentionally and repeatedly refus[ing] to comply” with its October 2022 order by withholding parenting time from Father. Id.

Even after the trial court entered its April 2023 order, Parents continued to have issues related to parenting time. On two occasions, in November 2023 and May 2024, Father sought to hold Mother in contempt in part based on her failure to honor his parenting time.¹ Specifically, Mother read the April order as eliminating Father's parenting time on the alternate Thursdays when Father had Child for the weekend; Father claimed he was still entitled to Thursday mid-week visits with Child when he had Child for the weekend.

[5] Parents were ordered to communicate with each other through the Talking Parents application. To illustrate their disagreements related to bi-weekly Thursday parenting time, in September 2023, Father stated he would be at their Kokomo meeting place “every single midweek because that is what the judge [ ] ordered and [he] want[ed] to see [Child] as much as [he could.]” Id. at 124. In February 2024, he noted that he “should be getting a midweek every week” per the April 2023 order. Id. at 92. In response, Mother asserted that “the court only [gave him] every other weekend plus [one] midweek[.]” Id. The next month, Father again messaged Mother that “per court order” he was entitled to Thursday midweek visits on the weeks he received weekend parenting time. Id. at 83. Mother responded that the court had “canceled” his Thursday visits because they were not convenient for her and replaced them with one Friday mid-week visit during the weeks he did not have weekend parenting time. Id. at 84.

[6] Parents’ disputes over this parenting time ramped up throughout August prompting Father to file a motion requesting primary legal and physical custody of Child in October. At the March 2025 modification hearing, Father testified that he had not received any Thursday midweek visits with Child because Mother would not acknowledge he was entitled to those visits. He also explained that, due to her work schedule, Mother had unilaterally pushed back the court-ordered meeting time for the visits she did observe. See Tr. at 127 (Mother acknowledging she changed Father's mid-week visit to 5:30-9:30 p.m. “because of [her] work schedule”). Father also testified that Mother deprived him of multiple holiday visits, and she failed to cooperate or communicate with him in other instances.

[7] Mother testified that she believed she was complying with the language of the court's orders. She explained that she had made a mistake about depriving Father of a Halloween holiday on one occasion and mistakenly thought she and Father had an agreement about exchanging Christmases on another.

[8] The testimony at the modification hearing also revolved around Child's medical issues. From infancy, Child has suffered from a runny nose, cough, and congestion, and he has had numerous upper respiratory infections. Child underwent a sleep study and was diagnosed with severe sleep apnea. In November 2024, he had surgery to remove his tonsils and adenoids.

[9] In July 2024, before Child had surgery, he was evaluated by an advanced practice registered nurse (APRN) for his chronic cough. He experienced respiratory wheezing which was indicative of constriction in his airways. This supported a diagnosis of asthma even though Child was too young for formal testing. The APRN prescribed Child budesonide twice daily and albuterol as-needed.² Mother did not fill Child's initial thirty-day prescription right away, did not timely refill it, and gave Father the initial prescription unopened near the end of 2024. Id. at 74-76. In December 2024, she pleaded with Father to stop giving Child budesonide because after his surgery, his symptoms improved. Ex. at 169-71. When the APRN evaluated Child again in January 2025, the exam was “unremarkable” and “there were no respiratory ․ concerns[,]” but she continued his prescriptions because of Father's “report of day and nighttime coughing on at least four days a month.” Tr. at 9, 10.

[10] At the modification hearing, the APRN agreed that Child did not yet have “severe persistent asthma[,]” but she testified it was “medically necessary” for Parents to follow his asthma action plan. Id. at 11-12, 19. She stood by her recommendation that Child take budesonide twice daily to achieve “the outcome [they were] hoping for[,]” including “minimiz[ing] and hopefully resolv[ing]” his chronic cough. Id. at 14, 16.

[11] Parents had differing opinions about Child's asthma care. At the time of the modification hearing, Father expressed concern about Mother's failure to abide by the medically-recommended asthma action plan and testified that he was following it because he “want[ed] [Child] to not be sick anymore[.]” Id. at 77. Mother testified that she did not believe Child needed “aggressive [asthma] treatment” because his breathing improved after the surgery and the APRN had warned Parents of potential side effects. Id. at 99-100. She admitted that she stopped giving Child budesonide twice a day after the tonsil surgery and unilaterally “changed it [to] as needed.” Id. at 133. Without notifying Father, Mother scheduled an appointment for a second opinion related to Child's asthma diagnosis (scheduled for May 2025), and she testified she would follow the asthma plan if a second provider affirmed it. The APRN testified that she generally supported families seeking second opinions. Id. at 19.

[12] On March 21, 2025, the trial court issued its order on the modification hearing. The order did not contain factual findings. In relevant part, the court continued Parents’ joint legal custody of Child but ultimately gave Father final decision-making authority on matters of education, healthcare, and religion if the parties could not agree. It also ordered Parents to “share joint physical custody of [Child]” where Child would be with Mother Sundays at 6:00 p.m. through Thursdays at 6:00 p.m. and with Father the remainder of the week. Appellant's App. Vol. 2 at 30. Parents were ordered “NOT to deprive” each other of parenting time and, “[a]s to the matter of contempt, Father [was] awarded [certain] additional parenting time” and $500 in attorney's fees. Id. at 32 (emphasis in original). Mother appealed.

Discussion and Decision

1. Custody Modification

[13] Mother argues that the trial court erred in modifying physical custody. She contends that Parents’ different interpretations of the trial court's April 2023 parenting time order and “disagreements over medical decisions” did not warrant custody modification. Appellant's Brief at 12.

[14] Due to Indiana's preference for deferring to the trial court in family law matters, we review a trial court's custody modification for an abuse of discretion. In re Paternity of A.R.S., 198 N.E.3d 423, 430 (Ind. Ct. App. 2022). We recognize that “[a]ppellate 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 ․, did not properly understand the significance of the evidence.” Id. (quoting Hahn-Weisz v. Johnson, 189 N.E.3d 1136, 1141 (Ind. Ct. App. 2022)). Accordingly, we neither reweigh the evidence nor reassess witness credibility. Id. at 429-30. Rather, we reverse only if the trial court's custody determination is “clearly against the logic and effect of the facts and circumstances before [it] or the reasonable inferences drawn therefrom.” Id. at 430. In this case, the trial court did not make any specific findings to support its conclusions.³ Under such circumstances, we apply a general judgment standard and will affirm if the judgment can be sustained on any legal theory supported by the evidence. Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008).

[15] Under Indiana's paternity statutes, the trial court was required to “determine custody in accordance with the best interests of the child” by considering “all relevant factors,” including but not limited to:

(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 [ ] 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 eithe parent.

(8) Evidence that the child has been cared for by a de facto custodian[.]

Ind. Code § 31-14-13-2.⁴ To modify the custody arrangement, the court had to find modification was in Child's best interests and that there had been “a substantial change in one [ ] or more of the” above factors. I.C. § 31-14-13-6. As the party seeking modification, Father had the burden to prove these elements. In re Paternity of B.D.D., 779 N.E.2d 9, 14 (Ind. Ct. App. 2002).

[16] Parents dispute whether Mother intentionally withheld regular parenting time from Father for nearly two years. Mother argues that she did not significantly interfere with Father's parenting time because she “reasonably” and “in good faith” interpreted the trial court's April 2023 order “as replacing Thursday midweek visits with Friday midweeks on alternating weeks.” Appellant's Reply Br. at 5. Father, on the other hand, argues that the order “specifically did not eliminate [his] mid-week parenting time on” his parenting weekends and that Mother's refusal to give him that parenting time was not a mere “misunderstanding.” Appellee's Br. at 15.

[17] “A custodial parent's general lack of cooperation or isolated acts of misconduct cannot serve as a basis for custody modification.” Maddux v. Maddux, 40 N.E.3d 971, 979 (Ind. Ct. App. 2015), reh'g denied. This is so because “[i]t is improper to utilize a custody modification to punish a parent for noncompliance with a custody order.” Montgomery v. Montgomery, 59 N.E.3d 343, 350 (Ind. Ct. App. 2016), trans. denied. However, a parent's “continuing and substantial” interference with the noncustodial parent's visitation rights may support a modification of custody. Id. at 351. In such a case, the deprived parent must show that the other's misconduct has been “so egregious that it places [the] child's mental and physical welfare at stake[.]” Id. at 350 (quoting Maddux, 40 N.E.3d at 979). Relatedly, there must be evidence that the custodial parent's lack of compliance makes “modification of custody in [the child's] best interests.” Id. at 352.

[18] We first consider Mother's claimed interpretation of the April 2023 order. We find that it is not supported by the language of the order or the circumstances surrounding the order, and the trial court could have reasonably found Mother's testimony that she believed otherwise not credible.

[19] Although trial court's April 2023 order modified its earlier order by moving Father's midweek parenting time to Friday evenings on the weeks he did not have weekend parenting time, it specifically stated that “[a]ll other terms relating to parenting time shall remain as provided in the [October 2022] Order.” Appellant's App. Vol. 2 at 51. Parents seemingly agree that the October 2022 order granted Father weekly Thursday visits, which is also consistent with the mid-week parenting time schedule contemplated by Section II(C)(3)(C)(2) of the Indiana Parenting Time Guidelines. Thus, by its plain terms, the April 2023 order only altered Father's off-parenting-weekend midweek visits. Moreover, in its April 2023 order, the trial court held Mother in contempt and sanctioned her for “fail[ing] to uphold [Father's] parenting time” under the October 2022 order. Tr. at 110; see Appellant's App. Vol. 2 at 51. Although the April 2023 order considered a motion to modify custody filed by Mother, it seems rather unlikely that the court would respond to Mother's noncompliance by stripping Father of parenting time. Indeed, the court specifically stated on the record that it was not “taking away time from [Father].” Tr. at 46-47; see also id. at 127-28 (Mother acknowledging the court made such a statement).⁵

[20] Thus, the language and the circumstances surrounding the April 2023 order show the trial court intended all previously ordered parenting time to continue unless specifically eliminated. The record supports a finding that Mother understood the court's order yet prioritized her own convenience over Father's bi-weekly Thursday visits. If she genuinely misunderstood the order or believed it eliminated Father's Thursday midweeks, she could have filed a motion to clarify the order once Father began raising the issue, or she could have asked her attorney to contact Father's attorney. She did neither.

[21] Next, Mother contends that even if she engaged in a pattern of denying Father parenting time, Father failed to present evidence connecting that deprivation to the child's best interests. In support of this argument, she points to this Court's decision in Montgomery. There, father appealed the trial court's modification of custody in favor of mother. Montgomery, 59 N.E.3d at 349. A primary reason for the modification was that father had denied mother five weeks of parenting time throughout 2013 and 2014. Id. at 351. The Montgomery panel reversed the trial court's custody modification because, most notably, there was a “lack of evidence that [f]ather's interference ․ had any detrimental effect upon [the child's] mental or physical health[,]” and “scant evidence that modification of custody was in [the child's] best interests.” Id. The panel noted there was

uncontradicted evidence of [child's] positive living situation with [f]ather, the complete dearth of evidence of what [child's] living situation with [m]other would be like and which move would involve completely uprooting her from her current community, and the lack of evidence that [f]ather's interference with [m]other's visitation has substantially or continually impacted [m]other's relationship with [child] or affected [child's] mental or physical health[.]

Id. at 353.

[22] Montgomery is not controlling under the present circumstances. For one, the mother in Montgomery never sought to hold the father in contempt for his interference with parenting time. Id. at 352. Here, however, Mother was held in contempt for failing to uphold Father's parenting time in the April 2023 order, Father filed rule to show cause motions in November 2023 and May 2024, and the court again held Mother in contempt in the order at issue in this appeal. Notably, under circumstances similar to the present case, a panel of this Court found sufficient evidence of “a substantial change in the interrelationship of the parties” when a parent “engaged in a continuing pattern of denial of parenting time” in the face of multiple contempt petitions. In re Paternity of J.T., 988 N.E.2d 398, 400-01 (Ind. Ct. App. 2013). Moreover, unlike the elementary school-age girl in Montgomery, Child was an infant and toddler when he regularly lost time with Father. The commentary to Section II(C)(1) of the Indiana Parenting Time Guidelines notes that “it is critical that [infants and toddlers] be afforded ample opportunity to bond with both parents” and stresses the importance of frequent visitation with the noncustodial parent in the first three years of life. Thus, a court could view a parent who prevents the noncustodial parent from exercising parenting time during such a critical time in the child's development as harming the child's best interests.

[23] Additionally, Father produced evidence of Mother's non-compliance with medical directives which, on its own, was sufficient to support modification.⁶ First, there was evidence that she failed to abide by the asthma plan from the time it was initially prescribed by Child's APRN. Although Child was originally prescribed budesonide in July 2024, his original thirty-day prescription went unfilled by Mother for nearly a month, Father received that prescription unopened near the end of that year, and Mother did not consistently refill Child's prescriptions. Tr. at 74-76. Second, Mother admitted that she unilaterally began giving Child budesonide as needed after his November 2024 surgery rather than twice daily as prescribed. Id. at 133. However, the APRN testified that budesonide is a long-term preventative asthma medication that Child was prescribed twice daily to reduce the chronic nature of the symptoms related to his condition. Id. at 12-14. Mother continued to fail to apply Child's asthma plan after the APRN maintained it was “medically necessary” in January 2025 due to Child's persistent symptoms. Id. at 21.

[24] Even if the November 2024 surgery resolved some of Child's breathing issues and his January 2025 exam produced “unremarkable [ ] respiratory findings[,]” the trial court could have found Child's physical health was endangered by Mother's unilateral decision to stop following the professionally prescribed asthma plan and instead administer budesonide on her own terms. Id. at 20. Likewise, the record supports a conclusion that a physical custody modification in favor of Father, who was following the asthma plan, was in Child's best interests. For these reasons, the trial court's custody modification did not constitute an abuse of discretion.

2. Parenting Time Modification

[25] Mother next argues that the trial court abused its discretion in its modification of parenting time because it did not give Mother any weekend time with Child. Courts must “give foremost consideration to the best interests of the child” in parenting time controversies. In re Paternity of C.H., 936 N.E.2d 1270, 1273 (Ind. Ct. App. 2010), reh'g denied, trans. denied; see I.C. § 31-14-14-2 (“The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child.”). We review a trial court's parenting time determination only for an abuse of discretion, and when “there is a rational basis for the [ ] court's determination, then no abuse of discretion will be found.” C.H., 936 N.E.2d at 1273.

[26] Initially, we note that “[t]he term ‘joint physical custody’ does not appear in any statute or court rule that we are aware of, nor does the term appear in the Parenting Time Guidelines.” Russell v. Russell, 223 N.E.3d 708, 713 (Ind. Ct. App. 2023). However, the term “means that the parties will share equal parenting time.” Id. at 714.

[27] As Father observes, a corollary of the trial court's decision to modify physical custody was a modification of parenting time. Mother accepts this but complains that the trial court's division of parenting time—under which she exercises weekly parenting time Sunday night through Thursday night—deprives her of nearly all “meaningful contact” with Child in contravention of the Parenting Time Guidelines. Appellant's Br. at 21. We disagree and find that, under the circumstances, the court had a rational basis for its modification of parenting time. See Ind. Parenting Time Guidelines, Preamble (“The purpose of these guidelines is to provide a model which may be adjusted depending upon the unique needs and circumstances of each family.”).

[28] Based on the record, we conclude that the trial court tailored its parenting time order around Mother's work-from-home flexibility. At the time of the modification hearing, Mother's employment was completely remote from 9:00 a.m. to 5:00 p.m., unlike Father, who worked as an electrician. Mother agreed that her job was “very flexible[.]” Tr. at 107. While she attended to her professional obligations during work hours, she confirmed that her workdays included “pockets of [ ] time where [she could] actually tend[ ] to [Child] solely[.]” Id. Indeed, Mother testified that she could work a few hours and then “stand off from [her] computer[ ] [to] cook for [Child], ․ talk to [Child], [and] play with [Child][.]” Id. at 106-07. She ensured that during her workdays, Child engaged in positive developmental activities, such as “reading, writing, color[ing], [and] drawing[.]” Id. at 125. Additionally, she was usually permitted to take Child to medical appointments during work hours on the condition that she kept her phone with her in case of a work emergency. See id. at 125-26. Mother's professional obligations occasionally required her to take Child to a family member's home for supervision, “but for [the] most part, [Child] stay[ed] with [her] in the house” while she worked. Id. at 125. On the other hand, Father and his wife worked typical weekday hours outside of their home requiring them to send Child to a paid daycare program “[e]very work day.” Id. at 35.

[29] Under these circumstances, the trial court had ample evidence to find that the specific parenting time schedule it ordered was in Child's best interests. Child will get to spend more time with both parents, rather than a daycare provider, and Mother still receives meaningful and continuing contact with Child. Thus, we cannot say that the trial court abused its discretion.

Conclusion

[30] We conclude that the trial court did not abuse its discretion in its modification of physical custody and parenting time.

[31] Affirmed.

FOOTNOTES

1.   Mother's appendix includes a chronological case summary of the underlying docket which reflects the rule to show cause motions filed by Father. However, her appendix does not contain the motions themselves. Pursuant to Indiana Evidence Rule 201(b)(5), which provides that this Court may take judicial notice of any record of a court of this state, we take judicial notice of these records accessible through our Odyssey case management system.

2.   The APRN explained that “budesonide helps preventatively, albuterol helps acutely.” Transcript at 12.

3.   While the trial court was not required to do so at the time, we note that as of July 1, 2025, trial courts are required to “include the court's findings of fact and conclusions of law on which [a] custody order is based.” Ind. Code. § 31-14-13-7.5(b)(1).

4.   We recognize that the primary case Mother relies upon, Montgomery v. Montgomery, 59 N.E.3d 343 (Ind. Ct. App. 2016), trans. denied, arose in the context of a dissolution proceeding. However, “the statutes relating to paternity and dissolution are substantially similar,” particularly in the context of the factors for consideration in custody modification proceedings. In re Paternity of K.J.L., 725 N.E.2d 155, 157 (Ind. Ct. App. 2000) (noting “the underlying principle behind” both sets of statutes is “the best interest[s] of the child”); see I.C. §§ 31-17-2-8, -21. Thus, “a case involving child custody ․ that arises in the dissolution context may be instructive and authoritative in a case that arises in the paternity context, and vice-versa[.]” K.J.L., 725 N.E.2d at 157.

5.   The transcript of this proceeding was not provided to us on appeal. See Ex. at 20, 22 (Father confronting Mother with the transcript of this statement by the court).

6.   We note that this issue also touches on the change the trial court made to Parents’ status as joint legal custodians. Although Mother correctly notes that the trial court's March 2025 modification order “effectively grant[s] Father legal custody by [giving him] final decision[-]making authority” on matters of education, healthcare, and religion, she does not challenge that determination. Appellant's Br. at 6; see also I.C. § 31-9-2-67 (defining “joint legal custody” as sharing “authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care, and religious training”); A.R.S., 198 N.E.3d at 429 n.5 (noting a grant of joint legal custody while giving final decision-making authority to one parent is “not truly joint legal custody”).

DeBoer, Judge.

Bradford, J., and Weissmann, J., concur.