Supreme Court splits 3-2, denies transfer in custody case

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IL for www.theindianalawyer.com

A mother’s appeal arguing that she was wrongly denied an evidentiary hearing on her petition to modify custody of her daughter was rejected last week by a divided Indiana Supreme Court.

Justices denied transfer in Jennifer Sanders v. Bryan Sanders, 42A01-1606-DR-1340. The Indiana Court of Appeals affirmed a trial court decision denying Jennifer Sanders’ petition in a memorandum decision in May, but she unsuccessfully sought to appeal to the Indiana Supreme Court.

Jennifer Sanders argued in her appeal that she was denied due process when the Knox Superior Court denied her motion without a full evidentiary hearing. She also argued the trial court erred by concluding that she had not established a substantial change of circumstances that warranted modifying parenting time for her daughter from joint custody to an award to her of primary custody.

The Court of Appeals affirmed the denial of mother’s motion, holding that she waived any objection to a lack of a hearing when she didn’t object to the trial court’s summary procedure. The COA also found the trial court’s decision was based on sufficient evidence.

Justices denied Jennifer Sanders’ transfer petition on a 3-2 vote. Chief Justice Loretta Rush joined a written dissent by Justice Steven David, who wrote that he would grant transfer to remand to the trial court so the parties could either stipulate to a summary proceeding or have a contested hearing.

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