MEMORANDUM DECISION
Tavitas, Judge.
Case Summary
[1] Mari Garner (“Mother”) appeals the trial courts denial of her petition to modify custody of her children with Adrian Lopez Hernandez (“Father”). The trial court found no substantial change in the statutory factors necessary to modify custody, and we agree. Accordingly, we affirm the trial courts denial of Mothers petition for modification of custody.
Issue
[2] Mother raises one issue, which we restate as whether the trial court erred by denying her petition to modify custody.
Facts
[3] Father and Mother married in 2014 and had three children: A.L., born in 2010; M.L., born in 2011; and R.L., born in 2017. Although the parties spent most of their marriage in Indiana, they were living in Alabama in 2020 and separated. At the time, there were concerns regarding Mothers mental health, substance abuse, and physical violence against Father. After a domestic violence incident, the children were removed from Mother and Father and placed in foster care, where they remained for some time before they were returned to Mother and Father. In January 2021, a trial court in Alabama dissolved the parties’ marriage and granted Father “sole primary physical and legal custody” of the children and granted Mother supervised parenting time. Appellants App. Vol. II p. 25. In August 2022, the Alabama trial court modified Mothers supervised parenting time to unsupervised parenting time. Father and the children moved to Columbus, Indiana, and Mother moved to Beach Park, Illinois. Father is not a citizen of the United States, but he has a legal work visa and is working with an immigration attorney to remain in the United States permanently.
[4] On January 20, 2023, Mother and Father exchanged the children for Mothers unsupervised parenting time. Mother, however, refused to return the children to Father and alleged that Father had abused and/or neglected the children. On January 23, 2023, Father filed a petition to register a foreign decree of dissolution of marriage in Indiana and requested a hearing to modify the decree. Father also filed a motion for an in camera interview of the children. On January 24, 2023, Father filed a motion for an order directing law enforcement to assist in the return of the children. The trial court set the matter for a hearing on February 10, 2023. Mother then filed a response and requested “full custody” of the children and supervised parenting time for Father. Appellants App. Vol. II p. 49.
[5] The trial court held a hearing on Fathers petition on February 10, 2023. At the hearing, the trial court conducted an in camera interview of all three children. The trial court then found:
4. When Father took the children to visit Mother in January, Mother refused to return them. She made allegations of abuse/neglect. The children reported abuse during the in camera interview. The Court notified the Indiana Department of Child Services (DCS) as required by law.
5. There is an active DCS investigation at this time.
6. Based on the testimony at hearing and upon the in camera interviews, the Court finds that unrestricted parenting time between Father and children would place them in physical danger and or significantly impair their emotional development. Pending final hearing Father may FaceTime and/or call the children between the hours of 6pm and 8pm nightly. Mother may monitor the conversations. Neither party may talk to the kids about their ongoing court case. Mother shall have temporary sole legal and primary physical custody of the minor children.
Id. a 51. The trial court also appointed a guardian ad litem (“GAL”) and ordered Mother and Father to submit to drug screens within forty-eight hours. The trial court ordered Mother to enroll the children in school and set the matter for hearing on June 23, 2023.
[6] Over the next several months, the parties engaged in repeated disputes regarding Fathers parenting time and discovery, and repeated contempt petitions were filed. After continuances, the trial court held hearings regarding custody of the children on October 5, 2023, and October 17, 2023.
[7] At the hearing, the guardian ad litem (“GAL”) testified that the repeated moves and high conflict between the parents have been stressful for the children. The GAL found that both Fathers and Mothers homes were appropriate for the children, and the children feel safe in both homes. The children are adjusting well to their lives and schools in Illinois, but the children desired a relationship with Father and wanted to see him. The children did not express concerns about spending time with Father but did express concerns about “having to move back and live with [Father] full time ․” Tr. Vol. 10-5-23 p. 13. The children did not express any safety concerns about Fathers home and did not report physical discipline by Father. The GAL “found nothing that would prevent [Father] from taking care of these kids as he had before.” Id. at 20-21. The GAL did believe that “displacing the children right now [ ] would be traumatic for them.” Id. at 24. The GAL opined that the “kids should stay in their school system at least through this school year.” Id. at 28. According to the GAL, the children “need some permanency and some consistency.” Id. at 37. The parents’ “tumultuous relationship” causes the children “a lot of stress ․” Id.
[8] Father testified that he wanted the children returned to him at the schools winter break. Father testified that he works the night shift and has a childcare provider at night. Father rents a two bedroom house; the children sleep in the bedrooms, and Father sleeps in the living room. Father testified that Mother has called DCS eight to ten times with allegations of neglect or abuse, but none of the allegations were substantiated.
[9] Mother admitted, during her testimony, that her current husband has supervised visits with his own two children from a different relationship. Mother argued that Father “clearly has no time for” the children he shares with her; the children are always with babysitters; Father is just using the children to stay in the United States; Father works “under [ ] different names at multiple jobs”; and she was unable to “actually determine ․ the safety [ ] inside” Fathers residence. Tr. Vol. 10-17-23 p. 77. Mother requested that, for the safety of the children, Father have supervised parenting time initially that could move to unsupervised parenting time.
[10] On October 25, 2023, the trial court entered findings of fact and conclusions thereon and denied Mothers petition to modify custody as follows:
9. The issues that brought the parties to court most recently began in January of 2023 after Father took the Children to visit Mother in Illinois and Mother refused to return the children after there were abuse/neglect allegations made.
10. Father filed a motion with the Court for immediate return of the children. The Court held [a] hearing on February 10, 2023 and held an in camera interview with the children. During the in camera interview, there were allegations of abuse/neglect made by the children. The Court then contacted DCS and an investigation was commenced. That investigation found that the allegations were unsubstantiated.
11. The Court finds the provisions contained in this Order to be in the best interests of the minor children.
* * * * *
13. The Court has considered all of the statutory factors as required by law. The Court finds at this time, that Mother has failed to meet her burden of proof to modify custody. The issues she cited outside of the abuse allegations, that were not substantiated, (nor were they of concern to the Guardian ad Litem), do not rise to a substantial and continuing change in circumstances such that the current orders of custody should be modified, nor has she shown that it is in the childrens best interests that custody should be modified. This Court does not believe that Father ever abused the children. There is clearly insufficient evidence to determine otherwise. The reason Mother refused to return the children were due to the allegations of abuse. Absent those allegations, the reasons cited at hearing are not sufficient to remove custody from Father. Mother cannot use the fact that the kids are doing good in Illinois now as a reason supporting a best interests finding when they should not have been removed from Father to begin with. However, the evidence presented has shown that the parenting time arrangements should be modified. The kids are deep into the semester at school in Illinois and the present living circumstances and changes since the Alabama decree warrant certain modifications.
14. As such, going forward, as of the end of the current school semester in Illinois, Father shall have legal and primary physical custody of the minor children as was previously ordered by the Alabama Court.
15. Mothers parenting time shall be pursuant to the Indiana parenting Time Guidelines with distance as a major factor, with the addition that she shall have one weekend per month from Friday at 8pm until Sunday at 6pm. If the parties cannot agree on which weekend, then Mother shall have the 3rd weekend of the month. Holidays, special days and vacations all pursuant to the guidelines when distance is a major factor. Her parenting time does not need to be supervised.
Appellants App. Vol. II pp. 105-07. Mother filed a motion to reconsider, which the trial court denied. Mother now appeals.
Discussion and Decision
[11] Mother challenges the trial courts denial of her petition for modification of custody. “ ‘Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time.’ ” Hahn-Weisz v. Johnson, 189 N.E.3d 1136, 1141 (Ind. Ct. App. 2022) (quoting Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)). “ ‘Thus enabled to assess credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.’ ” Id. (quoting Best, 941 N.E.2d at 502).
Additionally, there is a well-established preference in Indiana for granting latitude and deference to our trial judges in family law matters. 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. 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.
Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (citations and internal quotations omitted).
[12] Neither party requested special findings under Indiana Trial Rule 52(A), and the trial court entered its findings and conclusions sua sponte. As to the issues covered by the findings, we apply “a two-tiered standard of review that asks whether the evidence supports the findings, and whether the findings support the judgment.” Id. at 123. We reverse the findings only if they are “clearly erroneous.” Id. “Any issue not covered by the findings is reviewed under the general judgment standard, meaning a reviewing court should affirm based on any legal theory supported by the evidence.” Id. at 123-24. We neither reweigh the evidence nor judge the credibility of the witnesses, and we review the trial courts legal conclusions de novo. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).
[13] Mother challenges the trial courts denial of her petition to modify custody. Indiana Code Section 31-17-2-21(a) requires the party seeking to modify an existing custody order to prove that: (1) modification is in the best interests of the Child; and (2) there has been a substantial change in one or more of the factors set forth in Indiana Code Sections 31-17-2-8 or 31-17-2-8.5.
1
The factors set forth in Indiana Code Section 31-17-2-8 (“Section 8”) are:
(1) The age and sex of the child.
(2) The wishes of the childs parent or parents.
(3) The wishes of the child, with more consideration given to the childs wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the childs parent or parents;
(B) the childs sibling; and
(C) any other person who may significantly affect the childs best interests.
(5) The childs adjustment to the childs:
(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 childs parent; or
(B) a person found to be a de facto custodian of the child.
Ind. Code § 31-17-2-8.
[14] Mother argues that: (1) the children wished to live with Mother; (2) moving again would give the children stress and anxiety; (3) there was evidence of “domestic/family violence and verbal abuse occurring in Fathers home”; (4) Father made negative comments about Mother to the children; (5) Fathers work schedule made it difficult for him to care for the children and they were often left with babysitters; (6) one of the children was uncomfortable with people visiting Fathers home and using a restroom connected to the childs bedroom; and (7) Mother currently stays at home and is able to care for the children. Appellants Br. p. 26.
[15] This is a high conflict post-dissolution custody proceeding in which Mother and Father have thrown accusations at each other with little evidence to support any of the accusations. Overall, Mothers arguments on appeal are merely a request that we reweigh the evidence, which we cannot do. The trial court found that Mother failed to meet her burden of demonstrating a substantial change in one of the Section 8 factors, and we agree.
[16] We begin by noting, as the trial court did, that our Courts have long held that evidence of improvement of a childs condition during a temporary change of custody cannot be the basis of a substantial change in one of the above factors. See Joe v. Lebow, 670 N.E.2d 9 (Ind. Ct. App. 1996); see also Collyear-Bell v. Bell, 105 N.E.3d 176, 185 (Ind. Ct. App. 2018) (“[T]he trial court should not have considered J.C.B.s adjustment to her new home and community as evidence of a substantial change in the statutory factors” after temporary change in custody). In Joe, we held:
[T]o permit a noncustodial parent to utilize an ex parte order to gain temporary custody of a child, then permit permanent custody to be transferred to that parent based upon evidence of “improvement” in the childs condition while in that parents temporary care, might tend to encourage noncustodial parents to bring such petitions not on their merits, but as a conduit to obtain temporary custody of a child, then present evidence of such “improvement” as a “back-door” way of relitigating the initial custody determination. As stated, the proper inquiry in a modification hearing under the revised standard is not who would make the “better” parent; rather, the focus is upon whether a substantial change in one of the factors relevant to the determination of a childs best interests has occurred. Thus, we hold that the “substantial change” necessary to support a modification of custody may not be premised upon evidence of improvement in a childs condition while that child has been in the temporary custody of a noncustodial parent.
Joe, 670 N.E. 2d at 22 (footnote omitted). A childs improving condition, however, may be part of a trial courts consideration of the childs best interests. Id. at 23.
[17] The fact that the children are doing well in Illinois in Mothers care during the temporary custody order cannot form the basis of a substantial change. Allowing such evidence to form the basis of a substantial change would encourage noncustodial parents to make false accusations to obtain temporary custody and then use improvements in the childs condition as a method to obtain permanent custody. See id. Although the children were initially removed from Father during a DCS investigation, the allegations were unsubstantiated, and the trial court found no evidence that Father abused the children. Mothers argument to the contrary is merely a request that we reweigh the evidence.
[18] The GAL found that both Mothers and Fathers homes were suitable for the children. Most of the stress on the children has been caused by their repeated moves and knowledge of the high conflict between Mother and Father. Although we acknowledge the stress of yet another move on the children, the childrens current satisfaction with living with Mother pursuant to the temporary custody order cannot form the basis of a substantial change.
2
Accordingly, we agree with the trial court that Mother failed to demonstrate a substantial change in one of the Section 8 factors. The trial courts denial of Mothers petition for modification of custody is not clearly erroneous.
[19] Next, Mother argues that the trial court erred by granting Father sole legal custody of the children. Father already had sole legal custody of the children; accordingly, we must determine whether the trial court erred by denying Mothers request to modify legal custody. When considering a modification of legal custody, “we must determine whether there has been a substantial change in one or more of the factors listed in Indiana Code section 31-17-2-15, in addition to considering any substantial change to the Section 8 factors, as is typically necessary for physical custody modifications.” Milcherska v. Hoerstman, 56 N.E.3d 634, 641 (Ind. Ct. App. 2016). As we have noted, the trial court found no substantial change to a Section 8 factor, and we agree with that determination. Thus, we will consider whether there has been a substantial change in the factors listed in Indiana Code Section 31-17-2-15:
(1) the fitness and suitability of each of the persons awarded joint custody;
(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the childs welfare;
(3) the wishes of the child, with more consideration given to the childs 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 custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.
[20] “[T]he willingness and ability to communicate and cooperate in advancing the childs welfare ‘is of particular importance in making legal custody determinations.’ ” Pilkington v. Pilkington, 227 N.E.3d 885, 897 (Ind. Ct. App. 2024) (quoting Milcherska, 56 N.E.3d at 641). “That is, the trial court decides ‘whether the parents have the ability to work together for the best interests of their children.’ ” Id. (quoting Arms v. Arms, 803 N.E.2d 1201, 1210 (Ind. Ct. App. 2004)). “ ‘[I]f the parties have made child-rearing a battleground, then joint custody is not appropriate.’ ” Id. (quoting Periquet-Febres v. Febres, 659 N.E.2d 602, 605 (Ind. Ct. App. 1995), trans. denied).
[21] Mother makes no specific argument that a substantial change exists in any of these factors. Moreover, it is evident that Mother and Father have made child-rearing a battleground, making joint legal custody inappropriate. Mother and Father appear unable to work together for the best interests of the children. Under these circumstances, the trial courts denial of Mothers request for modification of legal custody is not clearly erroneous.
Conclusion
[22] The trial courts denial of Mothers petition for modification of custody is not clearly erroneous. Accordingly, we affirm.
[23] Affirmed.
FOOTNOTES
1
. Indiana Code Section 31-17-2-8.5 applies only when the trial court finds by clear and convincing evidence that the child has been cared for by a de facto custodian, which is inapplicable in this case.
2
. We have held that “a change in the childs wishes, standing alone, cannot support a change in custody.” Joe, 670 N.E.2d at 25.
Memorandum Decision by Judge Tavitas
Judges Crone and Bradford concur.
Crone, J., and Bradford, J., concur.