Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018 Page 1 of 14

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Monty K. Woolsey

Andrew R. Bloch

CROSS, PENNAMPED, WOOLSEY &

GLAZIER, P.C.

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Diana C. Bauer

BAUER LEGAL LLC

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In re the Paternity of A.M. and 

A.M. (Minor Children):

Brandi Miller,

Appellant-Respondent,

v.

Brock Hawthorne,

Appellee-Petitioner.

March 23, 2018

Court of Appeals Case No.

43A03-1710-JP-2369

Appeal from the Kosciusko 

Superior Court

The Honorable David C. Cates, 

Judge

Trial Court Cause No.

43D01-1705-JP-164

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018 Page 2 of 14

Case Summary

[1] Brandi Miller (“Mother”) appeals the trial court order granting Brock 

Hawthorne (“Stepfather”) third-party visitation rights with her children, A.M. 

and A.M. (“the twins”). While we agree with Mother that the trial court erred 

as a matter of law when it granted Stepfather visitation pursuant to the de facto 

custodian statute,1 we affirm on the grounds that Stepfather was entitled to stepparent visitation because he had a custodial and parental relationship with the 

twins and visitation is in the twins’ best interests.

[2] Affirmed.

Facts and Procedural History

[3] On March 2, 2007, Mother gave birth to the twins. The twins’ putative father is 

Travis Miller,2 but the record does not disclose whether paternity of the twins 

has ever been established. In June 2007, Mother and the twins moved into 

Stepfather’s home in Syracuse, Indiana. Mother gave birth to D.H., her and 

Stepfather’s child, on March 24, 2009, and Mother and Stepfather married in 

August or September of 2014. In June 2016, Mother and Stepfather separated 

and Stepfather filed for dissolution of marriage.

3

 

 

1

 Ind. Code § 31-9-2-35.5 (2017).

2

 Travis Miller did not participate in the trial court proceedings, and he does not participate in this appeal.

3

 The record does not disclose the outcome of the dissolution of marriage action. 
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018 Page 3 of 14

[4] On May 1, 2017, Stepfather filed a “Verified Motion for De Facto Custody [of 

the twins] or[,] in the Alternative, Step Parent Parenting Time.”

4

 Appellant’s 

App. at 3. On May 26, the trial court appointed James L. Walmer as guardian 

ad litem (“the GAL”) for the children, and the GAL filed his report on July 7.5 

At a custody hearing on July 10, 2017, the GAL testified that he had 

interviewed the twins and D.H. and that all three children wished to live with 

Stepfather. The GAL testified that the twins and D.H. all had a very close 

relationship with each other; that the twins became upset when D.H. was 

permitted to visit Stepfather but the twins were not; and that the twins were 

“adamant” that they wanted to live with Stepfather, who they called “father.” 

Tr. at 7-8. In fact, the twins thought Stepfather was their biological father until 

Mother informed them otherwise when they were around nine and a half years 

old. The twins never had any contact with their putative father.

[5] The GAL testified that Stepfather and Mother had both raised the twins and 

that it was “clear” that the twins loved them both. Id. at 9-10. From June 2007 

until he separated from Mother in June 2016, Stepfather took care of the twins

while Mother was at work by cooking meals for the twins, putting them to bed,

helping them with homework, and spending a lot of time with them. The GAL 

 

4

 Stepfather filed the current case as a new cause of action. Appellant’s App. at 2-3. And, while the CCS 

indicates the “action” is a “petition to establish paternity of a child,”—with a case type code of “JP”—the 

record contains no petition to establish paternity of the twins, and Stepfather has not alleged that he is the 

twins’ biological father. Thus, it appears this case should have been classified as a “Domestic Relations with 

Children” case, with the case type “DC.” Ind. Administrative Rule 8(B)(3).

5

 Neither the GAL report nor any other exhibits are contained in the record on appeal.
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018 Page 4 of 14

opined that it was in the twins’ best interests for Stepfather to have custody of 

the twins because the twins had reported to him that Mother’s new boyfriend 

had “hit them on their shoulders.” Id. at 22-23. However, the GAL 

acknowledged that the Indiana Department of Child Services (“DCS”) had 

investigated the allegations of abuse by Mother’s boyfriend and found the 

allegations unsubstantiated. 

[6] On July 18, 2017, the trial court, sua sponte, entered the following findings and 

order:

1. That Respondent, Brandi Miller, is the Mother of [the twins, 

A.M. and A.M.], both born March 2, 2007.

2. That Respondent, Travis Miller, is alleged to be the Father of

[the twins] but, despite service, is not participating herein, and 

has not been a part of the children’s lives.

3. That Petitioner, Brock Hawthorne, resided with Respondent,

Brandi Miller, as well as with [the twins,] for approximately 8

1⁄2 years.

4. That during the period in which [the twins] resided with 

Petitioner, Petitioner provided financial support for such

children, although the primary financial support for the 

children came from Respondent, Brandi Miller.

5. That during the period Petitioner, Brock Hawthorne, resided 

with [the twins], Petitioner provided substantial care for the 

minor children, as if he was their father.
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018 Page 5 of 14

6. That there is a substantial bond between Petitioner and the 

children and harming or severing that bond would be 

emotionally harmful for the children.

7. That it is in the best interests of the minor children that 

Petitioner have custody of those children, including, but not 

limited to:

7.1Petitioner [is] known by the children as “dad” and was the 

only “dad” these children knew until recently when

Respondent, Brandi Miller, deliberately harmed the 

children by informing them that Petitioner was not the 

children’s biological father.

7.2Petitioner was the primary caretaker for each of the 

children much of the children’s lives, including helping the 

children with homework, preparing meals for the children,

and acting in a parental role to the children.

7.3Petitioner has provided and can provide a more stable, 

loving[,] and appropriate home, free from violence, than 

has Respondent, Brandi Miller.

7.4Respondent, Brandi Miller, has attempted to influence the

children and their communications with officials from the 

Department of Child Services and this Court’s Guardian 

Ad Litem.

7.5Respondent, Brandi Miller, uses the children as pawns to

effectuate her own purposes and has limited the children’s

contact with Petitioner for selfish purposes.
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018 Page 6 of 14

7.6Petitioner Brock Hawthorne’s residence has sufficient 

space and is an appropriate environment for the care of the 

minor children.

7.7Respondent, Brandi Miller, has, at various times, utilized

Petitioner Brock Hawthorne’s surname for and on behalf 

of the children and when referring to the children.

8. That the due process clause of the 14th Amendment to the 

United States Constitution protects the fundamental right of

parents to make decisions concerning the care, custody[,] and 

control of their children[,] Troxel v. Granville, 530 US 57 

(2000), and most recently, Respondent, Brandi Miller, has 

permitted Petitioner, Brock Hawthorne, visitation with the 

minor children.

9. That Respondent, Brandi Miller, while certainly not a model 

parent, cannot be determined to be unfit, has not long 

acquiesced in Petitioner Brock Hawthorne’s custody of the 

children, and has not voluntarily relinquished custody of the 

children to Petitioner, Brock Hawthorne. See Hendrickson v. 

Binkley, 316 N.E.2d 376 (1974).

10.That while Petitioner, Brock Hawthorne, has certainly acted 

in a positive fashion in the children’s best interests and has 

been more of a parent to these children than either of the 

children’s biological parents, the Court cannot find Petitioner, 

Brock Hawthorne, to be a de facto custodian as set forth in 

I.C. 31-9-2-35.5 and as is [sic] interpreted by Brown v. 

Lungsford, 63 N.E.3d 1057 (Ind. [Ct.] App. 2016).

WHEREFORE, BE IT ORDERED, ADJUDGED AND 

DECREED that Petitioner’s Petition and Verified Motion for De 

Facto Custody or in the [A]lternative for Step-Parent Parenting 

Time is DENIED, subject to this Court reconsidering the same 
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018 Page 7 of 14

should Respondent, Brandi Miller[,] deny visitation to Petitioner 

moving forward.

Appellant’s App. at 11-13.

[7] On July 27, Stepfather filed a Motion to Correct Error and Motion to 

Reconsider, and the trial court set the motions for a hearing. At the August 30 

hearing, the GAL once again testified. He had spoken with the twins earlier 

that same day and the twins had informed him that they wanted to live with 

Mother and did not wish to even visit Stepfather “because he’s mean and he 

hurts them and all that stuff.” Tr. at 208. However, the GAL testified that it 

would “adversely affect [the children] in their life” [sic] if they were “cut off” 

from Stepfather. Id. at 201. The GAL stated that, in his “personal view,” 

Mother would be “unfit” if she did not give Stepfather parenting time with the 

twins. Id. at 213. The GAL believed Mother and Stepfather were speaking 

badly about each other in front of the children and that behavior was 

influencing the children’s statements regarding their wishes for custody and 

visitation.

[8] In an order dated September 12, 2017, the trial court granted, in part, 

Stepfather’s motion to correct error, stating in relevant part:

1. That Petitioner’s Motion to Correct Errors should be granted 

to the extent that paragraph nine (9) of the Order entered

herein on July 18, 2017, is modified and henceforth shall read 

as follows:
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018 Page 8 of 14

9. That Respondent, Brandi Miller, has not acted as a 

fit parent in denying Brock Hawthorne access to and 

visitation with the minor children, but has not long 

acquiesced in Petitioner Brock Hawthorne’s custody of 

the children and has not voluntarily relinquished 

custody of the children to Petitioner, Brock Hawthorne. 

See Hendrickson v. Binkley, 316 N.E.2d 276 ([Ind.] 1974).

2. That paragraph ten (10) of this Court’s Order of July 18, 2017,

shall henceforth read as follows:

10. That while Petitioner, Brock Hawthorne, has certainly 

acted in a positive fashion in the children’s best interests 

and has been more of a parent to these children than either 

of the children’s biological parents, the Court cannot find 

Petitioner, Brock Hawthorne[,] to be a de facto custodian 

for custodial purposes as set forth in I.C. 31-9-2-35.5, and 

as is [sic] interpreted by Brown v. Lungsford, 63 N.E.3d 

1057 (Ind. [Ct.] App. 2016); however, Brock Hawthorne is 

a de facto custodian as set forth in I.C. 31-9-2-35.5 for 

purposes of visitation.

3. That following entry of this Court’s Order of July 18, 2017, 

Respondent, Brandi Miller, without good cause, and in 

dereliction of the best interests of the minor children, 

prevented Brock Hawthorne from having visitation with said 

children, and said children with [sic] having visitation with 

Brock Hawthorne.

4. That it is in the best interests of the minor children that they 

have visitation with Brock Hawthorne, and that, henceforth, 

Brock Hawthorne shall have visitation as if he were the 

biological father of each of these children, with such visitation 

to be had in accordance with the Indiana Parenting Time

Guidelines as presently construed, with the parties to share 
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018 Page 9 of 14

the children and have the children in their respective custody 

together as much as is reasonably possible.

* * *

Appellant’s App. at 9-10. Mother now appeals.

Discussion and Decision

Standard of Review

[9] When the trial court sua sponte enters findings and conclusions pursuant to 

Indiana Trial Rule 52, as it did here, 

the findings “control only as to the issues they cover and a 

general judgment will control as to the issues upon which there 

are no findings.” Tracy v. Morell, 948 N.E.2d 855, 862 (Ind. Ct.

App. 2011). We review findings for clear error and we review 

conclusions of law de novo. Bowyer v. Ind. Dep’t of Natural Res., 

944 N.E.2d 972, 983 (Ind. Ct. App. 2011). A judgment is clearly 

erroneous if no evidence supports the findings, the findings do 

not support the judgment, or the trial court applies an incorrect 

legal standard. Id. at 983–84.

K.S. v. B.W., 954 N.E.2d 1050, 1051 (Ind. Ct. App. 2011), trans. denied. 

However, we may affirm a trial court’s judgment on any legal theory supported 

by the evidence. See, e.g., J.M. v. Review Bd. of Ind. Dep’t of Workforce Dev., 975 

N.E.2d 1283, 1289 (Ind. 2012) (quoting Dowdell v. State, 720 N.E.2d 1146, 1152 

(Ind. 1999)).
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018 Page 10 of 14

[10] In addition, the visitation decision Mother challenges was made on a motion to 

correct error. 

The trial court’s decision on a motion to correct error comes to 

an appellate court cloaked in a presumption of correctness, and 

the appellant has the burden of proving that the trial court abused 

its discretion. Volunteers of Am. v. Premier Auto Acceptance Corp., 

755 N.E.2d 656, 658 (Ind. Ct. App. 2001). In making our 

determination, we may neither reweigh the evidence nor judge 

the credibility of witnesses. Id. Instead, we look at the record to 

determine if: “(a) the trial court abused its judicial discretion; (b) 

a flagrant injustice has been done to the appellant; or (c) a very 

strong case for relief from the trial court’s [order] ... has been 

made by the appellant.” Id. (citation omitted) (omission in 

original).

Page v. Page, 849 N.E.2d 769, 771 (Ind. Ct. App. 2006).

De Facto Custodian Statute

[11] Mother contends that the trial court erred as a matter of law when it granted 

Stepfather visitation6 with the twins pursuant to Indiana’s “de facto custodian” 

statute. We agree.

[12] Indiana law defines a “de facto custodian” as a person

 

6

 Although the trial court referred to the parenting time guidelines, only parents may be awarded “parenting 

time” pursuant to the Indiana Parenting Time Guidelines. See K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 461

(Ind. 2009). “[V]isitation, on the other hand, may be awarded to an unrelated third party, such as a 

stepparent, under certain circumstances...” Richardson v. Richardson, 34 N.E.3d 696, 700 n.2 (Ind. Ct. App. 

2015). Since Step-father is not a parent, we will refer to the trial court’s order as a visitation order and not a 

parenting time order. Id.
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018 Page 11 of 14

who has been the primary caregiver for, and financial support of, 

a child who has resided with the person for at least:

(1) six (6) months if the child is less than three (3) years of age; or

(2) one (1) year if the child is at least three (3) years of age.

I.C. § 31-9-2-35.5. Our Supreme Court has clearly held that status as a de facto 

custodian “bears only on the question of custody,” and does not give a trial 

court authority to award visitation to a non-parent. K.I., 903 N.E.2d at 461-62.

[13] Here, the trial court found that Stepfather was not a de facto custodian of the 

twins “for custodial purposes.” Appellant’s App. at 9. That finding is supported 

by the evidence that, while Stepfather did provide “substantial” care and 

support for the twins, he was not the “primary” caregiver and provider of 

financial support for them. Id. at 11.

[14] However, the trial court also held that Stepfather was a de facto custodian “for 

purposes of visitation.” Id. at 9. That was an erroneous legal conclusion, as the 

de facto custodian statute only applies to custody, not visitation. K.I., 903 

N.E.2d at 461-62; see also K.S. v. B.W., 954 N.E.2d 1050, 1051-52 (Ind. Ct. App. 

2011) (emphasis added) (“Our legislature specifically provided the definition of 

de facto custodian applies only to custody proceedings following the determination 

of paternity (Ind. Code § 31-14-13-2.5), actions for child custody or 

modification of child custody orders (Ind. Code § 31-17-2-8.5), and temporary 
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018 Page 12 of 14

placement of a child in need of services who is taken into custody (Ind. Code § 

31-34-4-2).”), trans. denied.

Step-Parent Visitation

[15] However, we may affirm the trial court’s judgment on any theory supported by 

the evidence. J.M., 975 N.E.2d at 1289. Here, the evidence supports the 

judgment that Stepfather is entitled to third-party visitation rights with the 

twins. 

[16] Parents have a fundamental constitutional right to determine the care, custody, 

and control of their children. Troxel v. Granville, 530 U.S. 57, 66 (2000) (citing 

the Due Process Clause of the Fourteenth Amendment to the United States 

Constitution). Thus, the courts must presume that a fit parent acts in her child’s 

best interests, and they must give special weight to a fit parent’s decision to 

deny or limit visitation to third parties. Brown v. Lunsford, 63 N.E.3d 1057, 1064 

(Ind. Ct. App. 2016). However, that does not mean that the parent may impose 

an absolute veto on any non-parent visitation. See, e.g., Francis v. Francis, 654 

N.E.2d 4, 7 (Ind. Ct. App. 1995) (holding that “[a] parent’s mere protest that 

visitation with the third party would somehow harm the family is not enough to 

deny visitation in all cases, particularly where the third party cared for the 

children as his own”), trans. denied. Rather, non-parents7 may obtain visitation

 

7

 Grandparents visitation rights—which are not at issue here—must be established pursuant to the separate 

statutory scheme in the Grandparent Visitation statutes. I.C. § 31-17-5-0.2 through § 31-17-5-10. Worrell v. 

Elkhart Cnty. Office of Family & Children, 704 N.E.2d 1027, 1028 n.1 (Ind. 1998). 
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018 Page 13 of 14

rights if they establish the existence of a custodial and parental relationship and 

that visitation is in the children’s best interests. Richardson v. Richardson, 34 

N.E.3d 696, 701 (Ind. Ct. App. 2015) (citing Worrell, 704 N.E.2d at 1028). “A 

stepparent relationship is a strong indicator that a custodial and parental 

relationship exists,” and “a child’s interest in maintaining relationships with 

those who have acted in a parental capacity will sometimes trump a natural 

parent’s right to direct the child’s upbringing.” Id. 

[17] Here, the evidence supports the trial court’s finding that Stepfather had a 

custodial and parental relationship with the twins. He lived with, raised, and 

cared for the twins for about eight and a half years. The twins called him “dad” 

and he was the only father they ever knew. He also provided some financial 

support for the twins. This is sufficient evidence of a custodial and parental 

relationship. See, e.g., Nunn v. Nunn, 791 N.E.2d 779, 786 (Ind. Ct. App. 2003) 

(finding a custodial and parental relationship between the child and stepfather 

where the stepfather and the child’s mother both were involved in raising the

child during the four-year period of their marriage, and stepfather cared for the 

child while mother was at work); cf. Brown, 63 N.E.3d at 1064-65 (holding 

mother’s boyfriend, who was not a stepparent and had shown no custodial and 

parental relationship to mother’s child, did not have standing to seek third-party 

visitation rights with the child).

[18] The evidence also supports the trial court’s finding that visitation with 

Stepfather is in the twins’ best interest. The twins were not only close with 

Stepfather but also with their half-brother, D.H., and the twins became upset 
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-JP-2369 | March 23, 2018 Page 14 of 14

when D.H. was permitted to visit Stepfather but they were not. The GAL 

testified that it would be harmful to the twins if they were not permitted to visit 

with Stepfather. See Richardson, 34 N.E.3d at 702-03 (holding visitation was in 

the child’s best interests where the stepfather had provided financial, emotional, 

physical, and educational support to the child for almost eight years); Francis, 

654 N.E.2d at 7 (holding that, where the children lived with the stepfather for 

six-plus years and he was the only father they knew, continued significant 

contact between the stepfather and the children was in the children’s best 

interests). And, although the GAL testified at the last hearing that the children 

did not wish to visit Stepfather, reportedly because he was “mean” and “hurt 

them,” the DCS did not substantiate those allegations and the GAL gave those 

allegations little credit. Clearly, the trial court also chose to give little weight to 

those claims, and we may not reweigh that evidence. Page, 849 N.E.2d at 771.

Conclusion

[19] Although the trial court erred as a matter of law when it granted Stepfather 

visitation with the twins pursuant to the de facto custodian statute, we affirm 

the judgment on the grounds that Stepfather had a custodial and parental 

relationship with the twins and visitation is in the twins’ best interests.

[20] Affirmed.

Crone, J., and Brown, J., concur.