Father loses custody appeal despite consideration of active-duty status

Olivia Covington for www.theindianalawyer.com

An Indiana trial court improperly considered a father’s active duty status when awarding custody of his child to his estranged wife, but that error does not change the custody determination, the Indiana Court of Appeals has ruled.

Matthew and Kayla Purnell lived on a United States Air Force base in California until April 2016, when Kayla moved back to Indiana due to allegations of Matthew’s infidelity. Kayla was pregnant at the time of the move, and she gave birth about two weeks after coming back to the Hoosier state.

The following June, Matthew traveled to Indiana with the intent of taking the child back with him to California, but Kayla was able to thwart his plan. Instead, Matthew has exercised parenting time with the child in Indiana on eight or nine occasions.

Kayla has remained the child’s primary caregiver, maintaining full-time work as a security guard and taking college classes part time. Though she has been diagnosed with mental health disorders Kayla’s caregivers do not have concerns about her ability to care for the child.

Meanwhile, Matthew now lives on an Air Force base in North Dakota with his girlfriend and their child. He filed for divorce in August 2016 in California, and the custody matters of the case were transferred to the Johnson Circuit Court in Indiana.

The Indiana trial court eventually awarded sole legal and primary physical custody of Kayla and Matthew’s child to Kayla, raising concerns about Matthew’s foiled plan to abduct the child. The court also noted “the anticipated transient nature of Father’s future employment with the Air Force.”

On appeal in Matthew Purnell v. Kayla Purnell, 19A-JP-162, Matthew argued the trial court improperly considered his active duty status when awarding custody to Kayla. The appellate court agreed, with Judge Patricia Riley writing that Matthew’s situation falls under Indiana Code section 31-17-2-21.3(a). That statute holds that “(a) court may not consider a parent’s absence or relocation due to active duty service as a factor in determining custody or permanently modifying a child custody order.”

“Although Mother proposes to limit the application of the statute to an ‘active duty combatant who has been deployed to another country for a limited period of time,’ no such language is included in section (a) of the statute, nor are we persuaded to constrain the statute’s interpretation as Mother suggests,” Riley said.

Even so, the appellate court did not reverse the custody determination. Instead, the panel said the error was harmless in light of the trial court’s findings regarding Kayla’s strides with her mental-health diagnoses, as well as her Indiana support network and her bond with the child. Those strides were countered by the trial court’s concerns about Matthew’s thwarted abduction plan.

“Mindful of our deference to the trial court in custody cases and without acknowledging the trial court’s conclusions with respect to Father’s active duty status,” Riley wrote, “we find that, in light of the totality of the remaining trial court’s findings and conclusions, sufficient evidence exists to support the trial court’s grant of sole legal custody and primary