ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY S. REISING JASON L. HORN
Gary, Indiana Munster, Indiana
JUDY M. TYRRELL
GARRY L. KIRK, ) ) Appellant (Defendant ), ) Cause No. 45S03-0205-CV-287 ) in the Supreme Court v. ) ) Cause No. 45A03-0103-CV-80 KATHY MAE KIRK, ) in the Court of Appeals ) Appellee (Plaintiff ). )
The Court of Appeals reversed and ordered custody awarded either to the father
or a neutral third party. Because the trial judge was better situated
to evaluate the best interests of this child, we affirm the trial court.
Mr. Kirk transferred to Rockford, Illinois, shortly after the divorce but has returned
to Indiana periodically to maintain contact with G.L.
In 1995, Mrs. Kirk accused Mr. Kirk of sexually molesting G.L. and petitioned the court to terminate his visitation rights. In February 1996, Mr. Kirk petitioned for modification of the custody arrangement.
The parties were regularly locked in a litigation struggle over the next five
years. The court monitored the family situation and sought to establish regular
visitation between Mr. Kirk and G.L. Mrs. Kirk repeatedly frustrated these reunification
See, e.g., Appellants App. at 55, 72, 84, 87, 106, 119,
152.) Five psychologists, two social worker/therapists, a guardian ad litem and a
psychiatrist provided reports on the family dynamics and personalities. (Id. at 34,
68, 50, 100, 118, 130, 163, 167, 173.)
The picture that emerged is not flattering to either parent. Mr. Kirk
was diagnosed as recently as October 2000 as having a chip on his
shoulder and being quick to anger (as the court observed firsthand at trial).
(T.R. at 47; Appellants App. at 120, 169.) He is narcissistically
disturbed and at least as concerned with his own image and presentation as
he is with his daughters well-being. (Appellants App. at 169.) At
trial, he dismissed the diagnosis of narcissism as blame sharing . . .
to appear politically correct. (T.R. at 57.) He acknowledged having a
fireball anger but described this as not something that would be out of
the ordinary. (
Mrs. Kirk has her own issues. She was diagnosed as severely narcissistically
disordered and unknowingly involved in manipulative, deceitful and exploitative behaviors in an effort
to preserve her pathological enmeshment with her daughter. (Appellants App. at 168.)
Taken together, these findings confirm a 1998 psychologists report that there is
no real evidence that any of the parties involved has any insight into
his or her own pathological misbehaviors beyond minimal lip service. The major
obstacle in this case will be getting these individuals on the same page.
Id. at 123.)
It is not surprising, therefore, that G.L. is troubled and confused. (
at 169.) Although none of the experts have credited the molestation
charge as true, G.L. firmly believes in it, and suffers anxiety over the
possibility of further molestation.
She has occasionally been so upset at the
prospect of visiting her father that she has soiled herself and become hysterical.
A psychiatric report in October 2000 concluded that although [b]oth parents suffer from
serious character pathology . . . a resolution of any kind, that
includes some degree of finality, is likely to improve the parents behavior and
thus the life for [G.L.]. (
Id. at 168.) The psychiatrist recommended
that G.L. continue to reside with Mrs. Kirk unless that arrangement proved untenable,
in which case Mr. Kirk should move to G.L.s neighborhood to take over
her physical custody in an environment that would provide a modicum of continuity.
(Id. at 170.)
Judge Bonaventura interviewed G.L., who made it clear that she wanted no contact with her father. (Interview Transcript at 16, 21-22, 26.) Only when pressed did the child reluctantly accept the notion of limited, supervised visitation. ( Id. at 22.)
In January 2001, the court denied the custody modification petition and set new visitation guidelines affording Mr. Kirk a minimum of three hours each weekend, supervised by the maternal grandparents, for an eight-week period, followed by at least four hours per weekend, unsupervised but in a public setting. The court ordered both parents and G.L. to participate in family counseling, with the possibility of eventual overnight visitation contingent upon a therapists recommendation. The court formally ordered both parents not to speak negatively about each other in G.L.s presence. See footnote
Mr. Kirk appealed, and the Court of Appeals held that the trial court
abused its discretion by leaving legal and physical custody of G.L. with Mrs.
Kirk despite overwhelming evidence that their relationship was harmful to G.L.s mental health.
Kirk v. Kirk, 759 N.E.2d 265, 270 (Ind. Ct. App. 2001).
It reversed and remanded with instructions to give Mr. Kirk legal custody and
either Mr. Kirk or a neutral third party physical custody. Id.
It also ordered a re-determination of visitation rights. Id. at 271.
We granted transfer.
We review custody modifications for abuse of discretion, with a preference for granting
latitude and deference to our trial judges in family law matters.
re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993) (affirming trial court
judgment shifting primary custody of children to father). We set aside judgments
only when they are clearly erroneous, and will not substitute our own judgment
if any evidence or legitimate inferences support the trial courts judgment. Id.
at 179 (citing Ind. Trial Rule 52(A)).
We explained the reason for this deference in
Brickley v. Brickley, 247 Ind.
201, 204, 210 N.E.2d 850, 852 (1965) (footnote omitted):
While we are not able to say the trial judge could not have found otherwise than he did upon the evidence introduced below, this Court as a court of review has heretofore held by a long line of decisions that we 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, or that he should have found its preponderance or the inferences therefrom to be different from what he did.
Therefore, [o]n 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. See footnote Id. (citations omitted).
Courts certainly should not reward parents who refuse to cooperate in the courts
efforts to reunify a child with another parent. Nonetheless, the trial judge
may well have believed:
[C]hildren will normally prosper and mature . . . under a standard of consistency better than they will otherwise, even though at any given point in time the noncustodial parent may appear capable of offering better surroundings, either emotional or physical. In the larger sense, the stability in surroundings, schooling, relationships, authority figures, daily routine, economic circumstances, etc. constitute a substantial determinant in assessing the statutorily enumerated factors relevant to a determination of the best interests of the child.
Kuiper v. Anderson, 634 N.E.2d at 558.
G.L. has no family in Rockford except a father whom she fervently wishes to avoid. Every aspect of her life would be disrupted should her father obtain custody. Her mother may have caused the estrangement, but the trial courts necessary focus was on what is best for G.L. under the totality of circumstances.
Like the Court of Appeals, we might have arrived at a different conclusion,
such as awarding custody to a neutral third party to allow G.L. to
remain in her hometown environment while developing a more positive attitude toward her
father. The trial court was better situated, however, to determine whether an
appropriate third party was available and, if so, to weigh that alternative.
We cannot say from the record that the trial court clearly erred in
deciding to leave G.L. with her mother while continuing to exert the courts
authority to re-establish G.L.s relationship with her father.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.