Court of Appeals of Indiana | Memorandum Decision 49A02-1711-JP-2639 | May 3, 2018 Page 1 of 10

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

Holly J. Wanzer

Nicole Makris

WANZER EDWARDS, PC

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Amy O. Carson

MASSILLAMANY JETER & CARSON 

LLP

Fishers, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In re the Paternity of K.W. 

(Minor Child): 

K.P.,

Appellant-Respondent,

v.

W.W.,

Appellee-Petitioner.

May 3, 2018

Court of Appeals Case No.

49A02-1711-JP-2639

Appeal from the Marion Superior 

Court

The Honorable James B. Osborn, 

Judge

Trial Court Cause No.

49D14-1701-JP-1552

Bailey, Judge.
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Case Summary

[1] K.P. (“Mother”) appeals an order placing eight-year-old K.W. in the physical 

custody of W.W. (“Father”). We address a single, consolidated issue for 

review: whether the custody order was entered without affording Mother due 

process. We reverse and remand for further proceedings. 

Facts and Procedural History

[2] On October 14, 2009, K.W. was born out-of-wedlock to Mother and Father. 

Mother and Father had long been involved in an on-and-off romantic 

relationship. Their eldest child, W.T.W., was ten years old when K.W. was 

born.1 Over the years, Father and Mother maintained separate homes in 

Indianapolis, and their romantic relationship continued to be on-and-off. 

Father sometimes had an access code or key to Mother’s residence and stayed 

there. Father also purchased a residence in Ohio, where he has full-time 

employment.

[3] When W.T.W. was a high school sophomore, he decided that he wanted to 

reside exclusively with Father in Ohio. Father obtained custody of W.T.W. 

through legal proceedings in Ohio. In 2013 or 2014, “when W.T.W. came to 

 

1 W.T.W. is now emancipated and living in Ohio. K.W. and W.T.W. also have a half-sibling who is a few 

years older than K.W. and is Father’s child from another relationship.
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live with Father,” Mother’s and Father’s romantic relationship ended. (Tr. Vol. 

I, pg. 114.) K.W. remained with Mother. 

[4] On January 10, 2017, Father filed a Verified Emergency Petition Regarding 

Denial of Parenting Time and Motion to Establish Custody, Parenting Time 

and Child Support. Father sought sole physical custody of K.W. and planned 

to move her to Ohio and enroll her in a private parochial school there. The 

parties reached an interim agreement permitting Father to exercise significant, 

almost half-time, overnights with K.W. 

[5] The trial court conducted hearings on October 10 and October 20, 2017. The

parties stipulated to the amount of time to be allotted for the presentation of 

evidence. Three minutes before his time expired, Father was called as a 

rebuttal witness and proffered Exhibit 26 – consisting of 202 pages purportedly 

depicting text messages between the parties. The trial court excluded this 

proffered exhibit for lack of foundation. However, after the hearing was

adjourned on October 20, 2017, the trial court entered an Admission Order of

the same date. The order reversed the trial court’s exclusion of Father’s Exhibit 

26. 

[6] Four days later, on October 24, 2017, the trial court issued an order providing 

in relevant part:

It is in the best interests of the Child that Father and Mother 

share joint legal custody of the Child with Father exercising 

primary physical custody. If there is an impasse on a decision, 

Father shall make the final determination.
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(Appealed Order at 1.) The trial court, which had indicated by its commentary 

and exclusion of certain evidence that it was making an initial custody 

determination based only upon best interests of the child, did not enter findings 

related to a change in circumstances to support custody modification. Mother 

now appeals. 

Discussion and Decision

[7] Mother alleges that she was denied due process. She argues that the trial court 

failed to enter adequate findings based upon the appropriate legal standard for 

making the custody determination and that the trial court’s sua sponte post-trial 

admission of evidence deprived her of any opportunity to challenge the 

belatedly-admitted evidence.

[8] Procedural due process must be provided to protect the substantive rights of the 

parties in child custody proceedings, and an opportunity to be heard on veracity 

and probity of that considered by the trial court is essential before a parent can 

be deprived of custody. Jendreas v. Jendreas, 664 N.E.2d 367, 370 (Ind. Ct. App. 

1996) (citing Van Etta v. Van Etta, 583 N.E.2d 767, 768 (Ind. Ct. App. 1991), 

trans. denied. Also, the relevant statutes contemplate that a parent will not be 

deprived of custody without an evidentiary hearing to determine whether there 

has been a substantial change in one or more of the factors relevant to the 

child’s best interests and whether modification would in fact be in the child’s 

best interests. In re Paternity of R.A.F., 766 N.E.2d 718, 726 (Ind. Ct. App. 

2002).
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[9] Indiana Code Section 31-14-13-2 provides that the court shall make an initial 

custody determination in a paternity case by looking at all relevant factors, 

including the factors listed in subsections (1) through (8) of the statute, to 

determine the best interests of the child. Those factors are:

(1) The age and sex of the child.

(2) The wishes of the child’s parents.

(3) The wishes of the child, with more consideration given to the 

child’s wishes if the child is at least fourteen (14) years of age.

(4) The interaction and interrelationship of the child with:

(A) the child’s parents;

(B) the child’s siblings; and

(C) any other person who may significantly affect the child’s 

best interest.

(5) The child’s adjustment to home, school and community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either 

parent.

(8) Evidence that the child has been cared for by a de facto 

custodian[.]
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[10] Indiana Code Section 31-14-13-6 prescribes a stricter standard for modification 

of a child custody order in a paternity action. A custody order may be modified 

only if it is in the best interests of the child and there is a “substantial change in 

one (1) or more of the factors that the court may consider under [Ind. Code § 

31-14-13-2 or 31-14-13-2.5]...” Ind. Code § 31-14-13-6.

[11] In an initial custody determination, there is no presumption in favor of either 

parent and the trial court’s determination is to be based upon the best interests 

of the child. See in re Paternity of Winkler, 725 N.E.2d 124, 127 (Ind. Ct. App. 

2000). However, to obtain a modification of custody, the burden is on the 

petitioner to demonstrate a substantial change in circumstances. Id. The 

stricter rationale is required because permanence and stability are deemed 

crucial for the wellbeing and happiness of the child. Id.

[12] In determining whether an initial custody determination standard or 

modification standard is appropriate, we look to the unique facts of the case. 

Id. In Winkler, the father acquiesced to Mother having custody of the child for 

ten years and the mother had custody by operation of law because the child was 

born out of wedlock. See id. (citing Ind. Code § 31-14-13-1, which provides that 

“[a] biological mother of a child born out of wedlock has sole legal custody of 

the child, ... unless a statute or court order provides otherwise[.]”). In those 

circumstances, we found the more stringent standard for modification of 

custody to be applicable despite the lack of an initial court determination. See 

id. at 128.
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[13] Here, there has not been a prior court order concerning K.W.’s custody. 

Mother had custody of K.W. by operation of law and Father acquiesced to 

Mother’s physical custody of K.W. for seven years before he filed his petition. 

In Winkler, we recognized that “the same concerns about stability and 

continuity” arose in the context of a long-standing custody arrangement even 

absent an “initial custody determination” by a court. Id. The Winkler Court 

held: “after a long acquiescence by a father in a paternity context, a trial court 

may not send a child to live with the other parent unless there is a showing 

pursuant to Ind. Code § 31-14-13-6.” Id. Although we recognize that Father’s 

acquiescence here is for a lesser term of years than was the father’s in Winkler, it 

is nonetheless a long acquiescence and Mother was deprived of custody she had 

long exercised. The trial court was obliged to go beyond a best interests 

inquiry, i.e., the court should have allowed relevant evidence to support 

consideration of whether there was a substantial change in one or more of the 

statutory factors. 

[14] Also, Mother claims that she was afforded no meaningful opportunity to be 

heard when the trial court made a sua sponte post-hearing decision to admit

Father’s Exhibit 26. On the final hearing day, Father brought to court a 

compilation of 202 pages purportedly depicting text messages between the 

parents. During cross-examination of Mother, Father’s counsel asked Mother 

to recite her cellular telephone number and Mother did so. Father’s counsel 

sought to admit the exhibit during Mother’s testimony but, after objection from 

Mother’s counsel, indicated that the exhibit would be proffered during Father’s 
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rebuttal testimony. At some point, the hearing was adjourned for five minutes 

to permit Mother to review the 202 pages. 

[15] Father was called as a rebuttal witness and the trial court cautioned that he had 

three minutes remaining to present evidence. Father testified that he had 

printed out texts that had been “on his current phone” using an application 

called WhatsApp. (Tr. Vol. II, pg. 77.) Father was unable to provide detail 

about the application; he did not testify to specific dates covered by Exhibit 26;

and he did not establish the cellular number used by himself or Mother during 

the dates appearing on Exhibit 26. The trial court excluded the proffered 

exhibit because of lack of foundation to support its admission. 

[16] The trial court’s post-hearing order indicated that, upon review of the authority 

of In re Paternity of B.B., 1 N.E.3d 151 (Ind. Ct. App. 2013), the trial court had 

found Exhibit 26 to be admissible. There, a panel of this Court discussed 

admissibility of transcribed text messages between parents:

When the substance of a text message is offered for an 

evidentiary purpose, the text message must be separately 

authenticated pursuant to Ind. Evidence Rule 901(a). Hape v. 

State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009), trans. denied. 

Rule 901 provides that “[t]he requirement of authentication or 

identification as a condition precedent to admissibility is satisfied 

by evidence sufficient to support a finding that the matter in 

question is what its proponent claims.” Absolute proof of 

authenticity is not required. Fry v. State, 885 N.E.2d 742, 748 

(Ind. Ct. App. 2008), trans. denied. When evidence establishes a 

reasonable probability that an item is what it is claimed to be, the 

item is admissible. Thomas v. State, 734 N.E.2d 572, 573 (Ind. 

2000). 
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In re B.B., 1 N.E.3d at 156. The father in that case had acknowledged that the 

telephone numbers were his and the mother’s; the mother had described the 

evidentiary exhibit as consisting of texts sent between her and the father. See id.

at 156-58. We found that there was sufficient evidence to support a finding that 

the text messages were what the mother claimed them to be, and that a 

sufficient foundation had been laid for their admission. Id. at 159. 

Accordingly, we found no abuse of discretion in the trial court’s decision to 

admit them. Id.

[17] Be that as it may, we are not reviewing for an abuse of discretion the trial 

court’s decision to admit evidence over one party’s objection at a hearing. 

Rather, we are confronted with a post-hearing reversal of a decision on 

admissibility which, by its procedural irregularity and lack of specificity,2 denied 

Mother the opportunity to be heard. We agree with Mother that she was not 

afforded procedural due process in this regard. See Paternity of R.A.F., 766 

N.E.2d at 726 (“An opportunity to be heard is essential before a parent can be 

deprived of custody.”). 

 

2

It is not apparent whether the trial court found all or less than all the texts to be relevant or to what extent 

the trial court relied upon the substance of any of the texts in making its custody determination.
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Conclusion

[18] The trial court’s blanket exclusion of evidence of a substantial change in 

circumstances and post-hearing reversal of an evidentiary ruling deprived 

Mother of a meaningful opportunity to be heard.

[19] Reversed and remanded for further proceedings consistent with this opinion.

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