Olivia Covington for www.theindianalawyer.com

An Indiana trial court abused its discretion in denying a father’s petitions to modify custody of his child and to hold the child’s mother in contempt of a paternity decree, the Indiana Court of Appeals ruled, finding the mother intentionally circumvented the terms of the decree that required her to vaccinate their child once the girl went to school.

Daughter G.G.B.W. was born in 2007 to J.B., the father, and S.W., the mother. The parents entered into a Decree of Paternity in 2011 giving both parents joint legal custody of the child and requiring S.W. to seek J.B.’s input prior to making any major medical, religious or educational decisions for the child. Further, the decree specifically ordered that the child be given all vaccinations required for her enrollment in school.

G.G.B.W. was not vaccinated following her birth, and at the time of the decree, she attended a Montessori school that did not require vaccinations. The parents then chose to enroll their daughter in a public school that required vaccinations, yet would waive that requirement if a parent executed a form claiming a religious objection.

Although J.B. refused to consent to S.W. signing such a form, S.W. signed it and G.G.B.W. began attending school without the required vaccinations. S.W. continued to submit the form without J.B.’s consent in the subsequent years.

Then in 2015, J.B. expressed concern to S.W. about the child traveling on a European cruise without vaccinations and subsequently chose to petition for modification of legal custody as to his daughter’s medical decisions. He then filed a contempt petition alleging S.W. had violated the decree by failing to vaccinate G.G.B.W. and for falsely advising the school of a religious affiliation.

While those motions were pending, J.B.’s wife gave birth to twins, one of which could not be vaccinated due to a serious heart condition. On the advice of a doctor who urged J.B. not to let the unvaccinated twin be around other unvaccinated people, he stopped exercising overnight parenting time with G.G.B.W. and would not permit her to physically meet the infants.

J.B. then filed a show cause motion, but the Marion Circuit Court denied that motion, as well as the contempt motion and petition to modify custody. The trial court claimed S.W. had complied with the decree by claiming a religious objection to the vaccinations and ordered J.B. to pay $10,000 toward her attorney fees.

On appeal, J.B. first argued the trial court had misinterpreted the decree when it failed to hold S.W. in contempt. The Indiana Court of Appeals agreed, with Judge Mark Bailey writing that the religious exemption to vaccination was in effect in 2005 —before the parties entered into the decree —`- so they are presumed to have been aware of it when they signed the 2011 agreement. But because the religious exemption exception is not included in the decree, S.W. was required to vaccinate the child, Bailey wrote.

Similarly, based on S.W.’s actions in contempt of the decree, “there is a substantial change in (her) ability to communicate and cooperate with (J.B.) in advancing Child’s welfare,” Bailey said. Thus, modification of legal custody as J.B. requested is in the child’s best interests, the court ruled.

Finally, the appellate panel found the trial court abused its discretion in imposing $10,000 in attorney fees on J.B. in light of S.W.’s misconduct, which caused the instant proceedings that she could not defend against. Thus, the Court of Appeals found the trial court abused its discretion in denying J.B.’s motions and petitions and remanded the case for further proceedings.