A.J., Appellant-Petitioner v. M.R., Appellee-Respondent (2026)

MEMORANDUM DECISION

[1] A.J. (“Mother”) appeals the trial court's order modifying child custody and awarding sole legal and primary physical custody of her minor child, L.R. (“Child”), to Child's biological father, M.R. (“Father”). Mother also appeals the order finding her in contempt and the imprisonment sanction which was immediately imposed. We affirm in part and reverse in part.

Facts and Procedural History

[2] Child was born to Mother and Father, out-of-wedlock, in August 2016 in Montgomery County, Tennessee. Father executed a paternity affidavit on August 10, 2016. On August 24, 2023, Mother signed an agreement authorizing the State of Indiana to establish and enforce an order of support for Child “under the provisions of Title IV-D of the Social Security Act.” Appellant's Appendix Volume II at 26. On November 12, 2023, the State, as Next Friend of Child, filed a Verified Petition for Support. On March 1, 2024, Father filed a “Verified Petition to Establish Custody, Parenting Time and Support, for Temporary Parenting Time and Other Ancillary Matters.” Id. at 28.

[3] The court held a hearing on July 30, 2024. On July 31, 2024, the court issued an “Order on Custody, Parenting Time, and Child Support.” Id. at 31. The court ordered that the parties “shall share joint legal custody,” and Mother “shall be awarded primary physical custody” of Child. Id. The court ordered that Father have certain weekend parenting time beginning on August 9, 2024, and that the parties follow the Indiana Parenting Time Guidelines for all holidays and extended summer parenting time. All parenting time exchanges were ordered to occur at an agreed upon location in Madisonville, Kentucky. Among other things, the court also ordered that each party “shall be entitled to one, thirty (30) minute phone call per day with [Child] at 6:00 p.m. CST.” Id. at 32. It ordered Father to pay retroactive child support of $158.03 per week as the amount that “should have been paid from August 30, 2023 through July 26, 2024,” followed by $95.00 per week as his child support obligation beginning August 2, 2024.

[4] On August 9, 2024, Mother filed a pro se “Verified Petition to Modify Parenting Time Without Agreement” wherein she requested “reduced parenting time for [Father]” and that it “be supervised.” Id. at 37. Her petition further stated, “Mother is not comfortable sending her son to stay so far away. Mother's car broke down on Thursday, August 8, 2024, and has no means of transportation.” Id. On September 23, 2024, Father filed a pro se “Verified Petition for Rule to Show Cause Regarding Custody or Parenting Time.” Id. at 38. Father alleged that Mother willfully disobeyed the court's custody order and asserted:

[Mother] has not discussed or met at the specified location in Madisonville, KY. To better accommodate [Mother], [Father] has offered to drive to [Child's] area of residence for the exchange, but this has not been successful. Below is a list of dates when the exchange could not be completed: Weekends of August 9, 2024; August 23, 2024; September 6, 2024; September 20, 2024. [Mother] has shown no willingness in discussing make-up parenting time at this moment.

Id. at 39. On September 24, 2024, Mother filed a pro se “Verified Petition for Rule to Show Cause Regarding Custody or Parenting Time” wherein she alleged that Father “has not been keeping up with agreed upon support for [Child]” and that “parenting time has been an issue due to transportation and medical reasons.” Id. at 42.

[5] The court held a hearing on November 14, 2024, and that same date entered an order denying Mother's petitions to modify and for contempt and granting Father's petition for contempt. The court found that Mother had willfully, knowingly, and intentionally violated the court's July 31, 2024 order. As a sanction, the court ordered that the parties “shall exercise modified joint legal custody” with Father having final say regarding such legal decisions, and that Mother could purge herself of the contempt finding if she paid $1,500 to Father within ninety days of the court's order. Id. at 45. The court modified the parenting time exchange location to an Evansville, Indiana location and the timing of the daily phone call with Child to 4:30 p.m. CST.

[6] On December 2, 2024, Mother filed a pro se “Petition for an Order for Protection and Request for a Hearing” on behalf of Child under Cause No. 82D01-2412-PO-7086. Id. at 47. Specifically, Mother alleged three incidents in which she claimed that Father placed Child “in fear of physical harm.” Id. at 49. None of the incidents involved claims against Father specifically. Rather, one of the incidents alleged that a different adult touched Child inappropriately while Child was in Father's care. The protective order matter was subsequently consolidated with the current paternity case.

[7] On December 10, 2024, Father filed a pro se “Verified Petition for Rule to Show Cause Regarding Custody or Parenting Time” wherein he alleged that Mother failed to provide him with requested medical records in a timely manner, had not met him for parenting time exchanges, made numerous appointments for Child without Father's knowledge or consent, was falsely accusing him of abusing the court's power, and failed to keep him apprised of Child's address. Id. at 55-56. On December 17, 2024, Father filed another pro se “Verified Petition for Rule to Show Cause Regarding Custody or Parenting Time” wherein he again alleged that Mother had repeatedly failed to meet with him to exchange Child, failed to provide requested medical records, and failed to maintain a consistent physical address which reflected Mother's “inability to act in [Child's] best interest.” Id. at 59. On the same date, Father filed a pro se “Verified Petition to Modify Custody Without an Agreement.” Id. at 61. The petition included the allegations in the petitions for rule to show cause and requested that “the court grant primary guardianship of [Child] to [Father].” Id.

[8] On February 13, 2025, Mother filed a pro se “Petition to Extend Payment of Fine” asserting that she was facing severe financial hardship and requesting the ability to pay the $1,500 prior contempt sanction over a twelve-month period in monthly installments of $250. Id. at 63. On March 21, 2025, the court extended the due date for Mother to pay to May 22, 2025. On May 21, 2025, Mother requested an additional extension, which the court denied.¹ On June 5, 2025, Mother filed a “Verified Motion For Appointment of Guardian Ad Litem” alleging that she believed that a Guardian Ad Litem was necessary to investigate the best interests of Child in light of the contested custody issues, the Department of Child Services (“DCS”) involvement in the case, and that it was her understanding that “Child was abused during [Father's] parenting time.” Id. at 75.

[9] The court held a hearing on June 6, 2025, to address all pending matters. Father appeared pro se, and Mother appeared with counsel. During the hearing, Father testified that the last time he was allowed to actually call and speak with Child was in November 2024. He stated that the last time he saw Child in person was also in November 2024. Father stated that he did not believe that “any DCS case” had ever been filed against him by DCS in Indiana or Tennessee regarding Mother's claims raised in her motion for protective order. Transcript Volume II at 24. Father presented, and the court admitted, text messages between he and Mother dating back to 2017. Mother testified that she did not comply with court orders regarding parenting time because of the “advice and recommendations” of DCS. Id. at 30.² Mother admitted that Child is emotionally traumatized, and she further admitted that an assessment for autism has been recommended for Child but that she had not obtained such assessment or pursued appropriate therapies.

[10] At the conclusion of the hearing, the court issued its order granting Father's petition for rule to show cause and his petition to modify custody and denying Mother's protective order petition and her motion for appointment of a Guardian Ad Litem. Regarding the custody modification specifically, the court, speaking directly to Mother, stated in relevant part as follows:

I don't know what will get through to you to understand that you cannot continue to unilaterally deny a father and child a relationship. You have done this at least since July of 2024 when I first began under this case and retained jurisdiction. The text messages show that you have demonstrated this type of behavior since at least 2017 and [over] the course of various times blocked him, not responded, made threats that he needs to stop being dad, replaced him with other individuals, had your child call other individuals father to try to systemically remove this individual from your child's life. This child I have no doubt is confused. I also did not preclude you at any point and time from seeking services for this child. Rather I said that you had to discuss that with father and that he would have final decision making because you had acted in such a way as to absolutely exclude him from any possible therapeutic assistance this child would have. You did not inform father of therapies, you did not inform father of disclosures, you did not inform him of medical appointments and in fact you acted in a way so that father would not be able to discover it. So I changed my order to ensure that you would have to communicate that and you are now saying that you somehow cannot offer your child assistance. That you cannot help him and give him the necessary treatment that you are claiming he needs. This is contradictory in every possible way to the best interest of your child. So one I am changing custody effective today ․ I do this with extreme hesitation because your eight (8) year old son is going to change custody and that is something that I am – it is not done lightly, it is done because I believe you won't allow him to know his father if I don't do this.

* * * * *

I have heard your testimony, I have listen[ed] to your testimony, I have heard the testimony of your husband, I have heard the testimony of others around you. I don't doubt your love but you are not following my orders at all, and the excuses that I have already told you I don't put weight in, you continue to use. You have denied parenting time since July of 2024 and you start off with transportation and when I say that is not creditable because he offered and he demonstrated text messages ․ then it was changed to DCS in real time at the last hearing and now after I changed the order in November you then file a DCS report, you then get them involved. So I am not unsympathetic ma'am but you are not listening and you are not complying[.]

Id. at 44, 50.

[11] In its written order, the court ordered that Father “shall be Child's sole legal custodian” and “shall be awarded primary physical custody” of Child. Appellant's Appendix Volume II at 23. Mother was awarded parenting time pursuant to the Indiana Parenting Time Guidelines to begin on June 13, 2025. Regarding Father's petition for contempt, the court found that Mother willfully, knowingly, and intentionally violated the court's November 14, 2024 order in denying Father all parenting time, telephone contact, and other communication with Child. The court immediately sentenced Mother “to three (3) days in the Vanderburgh County Jail” and ordered that she “be released Monday, June 9, 2025 at 8:00 a.m.” Id. at 24.

Discussion

I.

[12] Mother asserts that the trial court abused its discretion in modifying custody and awarding Father sole legal and primary physical custody of Child. She claims that the court did so “solely to punish Mother.” Appellant's Brief at 11.

[13] We review custody modifications for an abuse of discretion with a preference for granting latitude and deference to trial courts in family law matters. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). “We set aside judgments only when they are clearly erroneous, and will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment.” Id. The Indiana Supreme Court explained the reason for this deference in Kirk:

While we are not able to say the trial judge could not have found otherwise than he did upon the evidence introduced below, this Court as a court of review has heretofore held by a long line of decisions that we 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, or that he should have found its preponderance or the inferences therefrom to be different from what he did.

Id. (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). Therefore, “[o]n 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. (citing Brickley, 247 Ind. at 204, 210 N.E.2d at 852). In this case, the court did not make any specific findings to support its decision to modify custody.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).

[14] Pursuant to 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 either 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 physical 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. Ind. Code § 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).

[15] “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 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 the context of the statute, a custodial parent's interference with a noncustodial parent's visitation rights may be of such a degree that it represents a substantial change in the parties’ relationship and the parties’ relationship with their Child under subsection (4) of Ind. Code § 31-14-13-2. See, e.g., In re Paternity of J.T., 988 N.E.2d 398, 400-401 (Ind. Ct. App. 2013) (citing same provision of dissolution statute), trans. denied. 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[.]” Montgomery, 59 N.E.3d at 350 (quoting Maddux, 40 N.E.3d at 979). Further, 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.

[16] During the June 2025 hearing, Father testified that the last time he was allowed to call and speak with Child was in November 2024. He stated that the last time he saw Child in person was also in November 2024. Father stated that he did not believe that “any DCS case” had ever been filed against him by the Department of Child Services in Indiana or Tennessee regarding Mother's claims raised in her motion for protective order. Transcript Volume II at 24. Father presented, and the court admitted, text messages dating back to 2017 to show Mother's pattern of alienating him from Child's life. Although Mother had given differing excuses in the past, Mother testified that she did not comply with court orders regarding parenting time because of the “advice and recommendations” of DCS. Id. at 30.

[17] Our review of the record reveals evidence that supports a finding that Mother's misconduct has been so egregious that it places Child's mental and physical welfare at stake such that modification of physical custody was in Child's best interests. As observed by the trial court, Mother has been so consumed with depriving Father of his parenting time that she appears unable to act in Child's best interest. Indeed, Mother's excuses for her continuing and substantial interference with Father's rights have changed repeatedly, the court explicitly stated that it did not find any of her excuses credible, and Mother admitted Child is traumatized and needs therapies, both educational and emotional, that she is not providing. Under the circumstances, we cannot say that the trial court abused its discretion in granting Father's petition for modification and awarding Father primary physical custody of Child.

[18] With respect to modification of legal custody, a trial court should specifically consider whether there has also been a change in one of the statutory factors governing awards of joint legal custody. G.G.B.W. v. S.W., 80 N.E.3d 264, 271-272 (Ind. Ct. App. 2017) (citing Julie C. v. Andrew C., 924 N.E.2d 1249, 1259-1260 (Ind. Ct. App. 2010)), trans. denied. In a paternity case, those factors are:

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

(2) whether the persons awarded joint legal 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 legal custody;

(5) whether the persons awarded joint legal custody:

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

(B) plan to continue to do so;

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

(7) whether there is a pattern of domestic or family violence.

Ind. Code § 31-14-13-2.3(c).

[19] The record indicates that, pursuant to its November 14, 2024 order, the court ordered Mother and Father to share joint legal custody of Child which required Mother and Father to jointly make decisions about Child's medical care, schooling, religious instruction, and psychological counseling. In the case of an impasse, Father was granted final decision-making authority. Mother was further required to advise Father of all medical, school, therapy, and other appointments for Child. The court heard ample evidence that Mother failed to do so. Based on Mother's actions, there is a substantial change in Mother's ability to communicate and cooperate with Father in advancing Child's welfare. Accordingly, we cannot say that the trial court abused its discretion in modifying legal custody of Child and awarding Father sole legal custody.

II.

[20] We next address Mother's contention that the trial court's contempt sanction of incarceration was improper because it was “purely punitive.” Appellant's Brief at 17. Regarding sanctions as part of a contempt finding, we recently explained:

The principal purpose of a civil-contempt proceeding is not to punish the contemnor but rather to coerce action for the benefit of an aggrieved party. While imprisonment necessarily has both punitive and deterrent effects, imprisonment as a sanction for contempt will be viewed as remedial rather than punitive when the court conditions release upon the contemnor's willingness to comply with the court's order from which the contempt finding was based. In other words, the contemnor must be given the opportunity to purge the contempt and gain release from prison.

Tincher v. Sweat, 247 N.E.3d 793, 798 (Ind. Ct. App. 2024) (citations and quotation marks omitted).

[21] Here, we agree with Mother that the sanction accompanying the court's contempt finding contained no opportunity for Mother to purge herself of the contempt, making that sanction purely punitive and improper. Although we cannot offer Mother any effective relief, we find clear error in the court's contempt sanction and reverse it. See In re Paternity of C.N.S., 901 N.E.2d 1102, 1106 n.1 (Ind. Ct. App. 2009) (reversing jail sentence for civil contempt concluding that trial court erred in failing to give the father an opportunity to purge himself of contempt and noting that, while “we might consider this appeal moot” because the jail sentence has “long since expired,” a decision on the merits was appropriate to address the “clear error in the court's actions”).

[22] For the forgoing reasons, we affirm the court's custody modification as well as its contempt finding, but reverse the court's contempt sanction.

[23] Affirmed in part and reversed in part.

FOOTNOTES

1.   The record indicates that counsel entered an appearance on behalf of Mother on May 20, 2025, and that Mother ultimately paid the fine on May 22, 2025.

2.   Mother's counsel conceded that she had no “documentation” from DCS substantiating Mother's claims or instructing Mother to not comply with the court's order by not allowing Father contact with Child.

3.   The court's order was entered on June 6, 2025. 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 note that both parties cite to the dissolution statute, rather than the paternity statute. We observe that “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 Ind. Code. §§ 31-17-2-8, -21.

Brown, Judge.

Altice, J., and DeBoer, J., concur.