ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DEBORAH K. SMITH NANCY L. CROSS
Martin & Smith
MONTY K. WOOLSEY
Thorntown, Indiana Miroff, Cross & Woolsey
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE PATERNITY OF )
V.M., A.M., AND V.B., )
VICTOR BENAVIDES, )
vs. ) No. 06A04-0303-JV-117
PHILLIP MOORE, )
APPEAL FROM THE BOONE CIRCUIT COURT
The Honorable Steve David, Judge
Cause Nos. 9604-JP-88, 9609-MI-253, 9503-JP-46
June 27, 2003
OPINION FOR PUBLICATION
Victor Benavides appeals the trial courts decision denying his request for modification of
permanent custody of his two minor children, V.M. and V.B.,
which had been
previously placed with the childrens maternal grandfather Phillip Moore. Benavides raises two
issues for review, which we consolidate and rephrase as: whether the trial
court erred in denying his petition for modification of custody and continuing permanent
custody with Moore on the basis that doing so was in the best
interests of the children.
FACTS AND PROCEDURAL HISTORY
Benavides is the biological
father of V.M., age 9, and V.B., age
7, and although Benavides assumed a parental role of A.M., age 11, he
is not her biological father or her stepfather. All three children were
born out of wedlock.
Approximately seven years ago, the childrens mother
agreed to relinquish the care and custody of the children to her father.
She has never expressed a real interest in the children and has had
very little contact with them. She currently lives in Arizona and did
not attend the custody hearing. Because of his lack of fitness and
willingness to parent the children, due in large part to his past drinking
problems and criminal behavior, Benavides also voluntarily relinquished custody of the children to
It is undisputed that neither parent could then provide for the
needs of the children.
Benavides is now married and has a biological child with his wife and
two stepchildren. Until two or three years ago, Benavides had only sporadic contact
with V.M. and V.B. Since then, he quit drinking and using drugs,
attends church regularly, has consistent visitation with the children on alternate weekends, and
pays child support to Moore.
In November 2001, Moore filed a petition with the trial court to make
the temporary custody order a permanent order. Benavides did not dispute this
at the time. After Moore and his wife moved the three children
to Pittsboro from Lebanon, where Benavides resides, Benavides filed a petition for
modification of custody of the children. A hearing was held on December
27, 2002, and the trial court denied the modification of custody on January
21, 2003, but awarded liberal visitation with all three children. Benavides appeals
from this order.
DISCUSSION AND DECISION
Indiana law has traditionally recognized that natural parents are entitled to the custody
of their minor children, except when they are unsuitable persons to be entrusted
with their care, control, and education. Gilmore v. Kiston, 165 Ind. 402,
406, 74 N.E. 1083, 1084 (1905). We observe that a child custody
determination falls squarely within the sound discretion of the trial court and such
determination will not be disturbed on appeal absent an abuse of discretion.
Matter of Guardianship of R.B., 619 N.E.2d 952, 955 (Ind. Ct. App. 1993).
We are reluctant to reverse a decision concerning child custody unless the
determination is clearly erroneous and contrary to the logic and effect of the
Because appellate courts defer to the trial courts discretion, we disturb the judgment
only where there is no evidence supporting the findings or where the findings
fail to support the judgment.
In re Guardianship of B.H., 770 N.E.2d
283, 287 (Ind. 2002). Because we may not reweigh the evidence, but
instead may consider only the evidence favorable to the trial courts order, the
challenger thus labors under a heavy burden and must show that the trial
courts findings are clearly erroneous. Id. at 288. We further note
that upon review of a judgment requiring proof by clear and convincing evidence,
appellate courts may not impose their views as to whether the evidence is
clear and convincing but must determine, by considering only the probative evidence and
reasonable inferences supporting the judgment and without weighing the evidence or assessing witness
credibility, whether a reasonable trier of fact could conclude that the judgment was
established by clear and convincing evidence. Id.
B.H., our supreme court articulated the following rule with respect to
the standard to be applied in custody disputes between a natural parent and
a third party:
Despite the differences among Indianas appellate court decisions confronting child placement disputes between
natural parents and other persons, most of the cases generally recognize the important
and strong presumption that the childs best interests are ordinarily served by placement
in the custody of the natural parent. This presumption does provide a
measure of protection for the rights of the natural parent, but, more importantly,
it embodies innumerable social, psychological, cultural, and biological considerations that significantly benefit the
child and serve the childs best interests. To resolve the dispute in
the caselaw regarding the nature and quantum of evidence required to overcome this
presumption, we hold that, before placing a child in the custody of a
person other than the natural parent, a trial court must be satisfied by
clear and convincing evidence that the best interests of the child require such
a placement. The trial court must be convinced that placement with a
person other than the natural parent represents a substantial and significant advantage to
the child. The presumption will not be overcome merely because a third
party could provide the better things in life for the child.
[v. Binkley], 161 Ind. App. [388,] 396, 316 N.E.2d [376,] 381 [(1974), cert.
denied, 423 U.S. 86, 96 S. Ct. 131, 46 L. Ed. 2d. 98
(1975)]. In a proceeding to determine whether to place a child
with a person other than the natural parent, evidence establishing the natural parents
unfitness or acquiescence, or demonstrating that a strong emotional bond has formed between
the child and the third person, would of course be important, but the
trial court is not limited to these criteria. The issue is not
merely the fault of the natural parent. Rather, it is whether the
important and strong presumption that a childs interests are best served by placement
with the natural parent is clearly and convincingly overcome by evidence proving that
the childs best interests are substantially and significantly served by placement with another
person. This determination falls within the sound discretion of our trial courts,
and their judgments must be afforded deferential review. A generalized finding that
a placement other than with the natural parent is in a childs best
interests, however, will not be adequate to support such determination, and detailed and
specific findings are required. [In re Marriage of]Huber, 723 N.E.2d [973,] 976
[(Ind. Ct. App. 2000)].
Id. at 287 (emphaisis added).
Applying this rule to the present case, it is presumed that it was
in the best interest of the children to be placed in the custody
of their natural father. The Moores had the burden to overcome that
presumption. Here, the trial court concluded that staying with the Moores was
in the childrens best interests, and it articulated specific reasons for its conclusion.
In pertinent part, the trial court entered the following order
maintaining custody of the children with the Moores:
19. The issues before the Court are not just stability and consistency or
whether or not Mr. Benavides is capable of caring for the children.
Of course, he is now capable of caring for the children. He
has made dramatic changes, for the better, to his life. He and
[his wife] are making a very good life together. The issues before
the court are much more complicated.
20. The court has very carefully considered the in-camera interviews, the testimony
at the hearing and the current case law.
. . . .
23. Despite the fact the Mr. Benavides has significantly changed his life
for the better and despite the fact that the Court commends Mr. Benavides
and expresses its satisfaction with [him, his wife,] their family, home and church
involvement, Mr. Benavides[s] Petition to Modify Custody is DENIED. In the future,
the circumstances may change and a different order appropriate, but not at this
24. Mr. Benavides previously consented to the present arrangement. The children
are doing well in their new school. They like their new school.
Mr. Benavides already has a household with a young daughter and two
step-sons. [The other three children] are in a home where they are
the focal point of Mr. and Mrs. Moores affection and attention. The
children have a new home, a larger home and more privacy. The
children[s] mental, emotional, and financial needs are all being met.
25. The Court is exercising its sound discretion in this area to
do what is best and what is right for the children at the
present time. This is not an easy, flippant decision. The Court
does not wish to separate the children as such a decision would (not)
[sic] be advantageous to the children and certainly not in their best interest,
any of them.
26. The Court understands that Mr. Benavides disparately [sic] wants to fulfill
his responsibilities as a parent. However, he already has his hands full
and Mr. and Mrs. Moore have been doing a very good job in
his absences. The primary concern then becomes the children.
27. Thus, the best interests of the three children are the paramount
consideration of this Court. Mr. Benavides consented to the present arrangement.
Nothing has changed to such a degree to warrant a modification of custody.
28. Upon careful consideration of the testimony, including the in-camera interviews, the
Court further concludes that the relationship and affections between Mr. Moore and the
children have become so interwoven that to sever them, by modifying custody (and
therefore removing the children from the only home they have known for many
years and uprooting them from their new school and friends) would seriously mar
and endanger the future happiness of the children. The mental and emotional
well being of the children must be considered and giving great deference by
29. The best interests of each of the children demand that they
remain in the custody of Mr. Moore. Clear and convincing evidence has
been provided to the Court that this is what is best and right
for the children. There is a substantial and significant benefit to the
children by remaining in the custody of Mr. Moore.
Appellants Appendix at 8-9.
Our review of the record before us on appeal supports the conclusion that
the presumption in favor of Benavides having custody of the children was rebutted
by evidence of Benavides past unfitness, voluntary abandonment of the children, long acquiescence
of the Moores custody, and other factors that would rebut the strong presumption
in favor of Benavides. While sympathetic to the relationship that has developed
between the children and Benavides, we acknowledge the upheaval that a change in
custody in this case would undoubtedly involve. The trial courts properly considered
whether the presumption in favor of Benavides having custody had been rebutted and
concluded that the childrens best interests were served by continued placement with the
MATTINGLY-MAY, J., and MATHIAS, J., concur.
A.M. is not a party to this appeal concerning custody as the
child is not the biological or adopted child of Benavides. Despite Benavidess
argument to the contrary that no natural parent as [sic] asserted a custodial
Appellants Brief at 8, we agree with the trial court that it
had very little authority, if any, to place custody of the child with
Benavides because he was not the childs biological father. Appellants Appendix at