The importance of an attorney in child custody litigation

In making a determination of child custody, Indiana Courts consider all relevant factors in determining the child’s best interests, including a nonexclusive list of factors provided in Indiana Code section 31-17-2-8:
(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.

The Indiana Appellate Courts in reviewing custody determinations on appeal, have time and time again stressed the importance of parents and grandparents facing custody battles to seek out and retain competent legal counsel: "We encourage parties facing issues involving the custody of children to obtain counsel to aid in the litigation of custody disputes. Because the court’s order has such a profound effect on the lives of the parties and their children, we cannot emphasize enough the importance of presenting sufficient evidence and developing an adequate record." In re Paternity of J.J., 911 N.E.2d 725, 731 n.3 (Ind. Ct. App. 2009).

The Appellate Court once again emphasized this importance in an opinion released (not for publication) on November 9, 2009. In the case: In re: the Marriage of Constance V. Spence v. Michael J. Spence, on appeal from the Vanderburgh Superior Court, the trial court had awarded the Father sole physical custody of the parties children, subject to Mother's parenting time under the Indiana Parenting Time Guidelines. In the case, both parties had started litigation with counsel, but both later conducted a provisional hearing without counsel where Father received provisional custody of the parties child. In making its determination, the trial court found that Mother had or risked endangering the child’s emotional and mental health due to numerous instances where Mother had operated contrary to the child's best interests. Father proceeded to final hearing without counsel but Mother retained an attorney who appeared on her behalf.

While the trial court awarded Father continued custody of the child, Mother was able to show, on appeal, that Father had failed to lay the sufficient evidentiary foundation for certain matters, and the Indiana Court of Appeals found that the trial court's findings were not supported by the evidence before it, and remanded for a new hearing. If Father had retained competent counsel, this appeal may have been without basis and the appellate court may have maintained the trial court's findings.

If you are dealing with child custody matters, the attorneys at Hollingsworth & Zivitz, P.C. are ready to assist you.