FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
LINDA LORCH DWAYNE E. COOPER
Lorch & Naville, LLC Cooper Legal Services
New Albany, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF HUBER )
)
ANGELA M. HUBER (MALFAVON ), )
)
Appellant-Petitioner, )
)
vs. ) No. 22A05-9911-CV-482
)
MICHAEL B. HUBER, HOLLIS HUBER, )
and BETTY HUBER, )
)
Appellees-Respondents. )
APPEAL FROM THE FLOYD SUPERIOR COURT
The Honorable Richard G. Striegel, Judge
Cause No. 22D01-9509-DR-289
February 22, 2000
OPINION - FOR PUBLICATION
KIRSCH, Judge
Angela M. Huber Malfavon appeals the decision of the trial court awarding custody
of her two children, E.H. and H.H., to Hollis and Betty Huber (the
Hubers), the children’s paternal grandparents, contending that there is insufficient evidence to support
the court’s decision.
We reverse.
FACTS AND PROCEDURAL HISTORY
Malfavon and Michael Huber were married on October 6, 1991. The couple
had two children. The couple originally lived near Shelbyville, Indiana, but moved
to New Albany, Indiana near the Hubers after the birth of their first
child.
In March 1995, Michael moved to Nevada to find better employment. Malfavon
joined him a few weeks later, leaving the children in the Hubers’ care.
In June of that year, the children joined their parents in Nevada.
In September, Malfavon told Michael that she wanted a divorce and left
the family home. Hollis flew to Nevada to pick up the children
from Michael and returned them to the Huber home. A few days
later, Michael also moved back to New Albany. Michael, E.H., and H.H.
began living with the Hubers.
On September 15, 1995, Michael filed a petition for dissolution of his marriage
to Malfavon. Two weeks later, Malfavon returned to Indiana and took the
children back to Nevada. On October 4, 1995, the Hubers filed a
motion to intervene in the dissolution proceedings for the purpose of seeking custody
of E.H. and H.H. Two days later, the trial court entered an
emergency temporary custody order granting the Hubers custody of the children. The
Hubers brought the children back to Indiana.
By December 1995, Malfavon had returned to live in Indiana. She was
granted weekend visitation with the children and petitioned for custody. In January
1997, the home study of Malfavon’s home was completed and filed with the
trial court. After several evidentiary hearings, the trial court granted custody of
the children to the Hubers. Malfavon now appeals.
DISCUSSION AND DECISION
Malfavon argues that the evidence is insufficient to support the trial court’s conclusion
that granting the Hubers custody of E.H. and H.H. is in the best
interest of the children. A child custody decision falls within the sound
discretion of the trial court and will not be disturbed absent a showing
of abuse of discretion. Teegarden v. Teegarden, 642 N.E.2d 1007, 1008 (Ind.
Ct. App. 1994) (citing In re Guardianship of Riley, 597 N.E.2d 995, 997
(Ind. Ct. App. 1992)). We will not reverse a trial court’s determination
regarding child custody unless it is clearly erroneous and contrary to the logic
and effect of the evidence. Id. When a custody determination is
to be made between a natural parent and a third party, the court
presumes the parent has a superior right to custody and the nonparent seeking
custody bears the burden of overcoming this presumption. In re Paternity of
L.K.T., 665 N.E.2d 910, 912 (Ind. Ct. App. 1996). Any of three
conditions is sufficient to rebut the presumption that granting custody with the natural
parent is in the best interest of the child. Id. Those
three condition are unfitness of the natural parent, long acquiescence in the child
living in the care of others, or voluntary relinquishment of custody of the
child to others such that the affections of the child and the third
party have become so interwoven that to sever them would seriously endanger the
future happiness of the child. Id. If any of those three conditions
is proven, then the question becomes whether it is in the best interests
of the child to be placed in the custody of the third party.
In re Guardianship of R.B., 619 N.E.2d 952, 954 (Ind. Ct. App.
1993) (citing Hendrickson v. Binkley, 161 Ind. App. 388, 316 N.E.2d 376 (1974),
cert. denied 423 U.S. 868, 96 S. Ct. 131, 46 L. Ed. 2d
98 (1975)).
Here, the trial court rejected this test, stating,
“this Court is not required to follow the ‘mechanical approach’ as set forth
above, in evaluating evidence in custody actions. The over-riding factor in this
Court’s consideration is the best interests of the children; there are circumstances in
which a Court may prefer a non-parent over a parent ‘which may not
fit neatly into one of the three aforementioned categories.’”
Record at 221 (citing L.K.T., 665 N.E.2d at 910 and Turpen v. Turpen,
537 N.E.2d 537 (Ind. Ct. App. 1989)). In concluding that staying with
the Hubers was in E.H. and H.H.’s best interest, the trial court relied
on two factors: the disruption of moving from the Hubers’ home and community
to Malfavon’s; and the fact that Malfavon works second shift, and thus would
not be able to care for the children in the afternoons and evenings.
Neither of these facts is sufficient to establish any specific reason why
the trial court concluded that the presumption in favor of Malfavon having custody
of her children had been rebutted.
We agree with the trial court that there are perhaps circumstances outside of
the three traditionally listed in case law which might support a conclusion that
custody of children by a nonparent is in their best interest. We
disagree, however, that a generalized finding that such an arrangement is in the
best interest of the child is adequate to support such a decision.
In
Hendrickson, this court noted,
“If the ‘best interest rule’ was the only standard needed without anything else,
to deprive the natural parent of custody of his own child, then what
is to keep the government or third parties from passing judgment with little,
if any, care for the rights of natural parents. In other words,
a child might be taken away from the natural parent and given to
a third party simply by showing that a third party could provide the
better things in life for the child and therefore the ‘best interest’ of
the child would be satisfied by being placed with a third party.”
161 Ind. App. at 396, 316 N.E.2d at 381.
We reverse the decision of the trial court maintaining custody of the children
in the Hubers and remand with instructions to award custody to Malfavon
or to justify continuing custody in the Hubers by appropriate finding.
Reversed and remanded.
SHARPNACK, C.J., and RILEY, J., concur.