Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017 Page 1 of 21

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

Jacob H. Miller

Caitlin M. Miller

Hunt, Hassler, Kondras & Miller LLP

Terre Haute, Indiana

ATTORNEYS FOR APPELLEE

Andrea Ciobanu

Ciobanu Law, P.C.

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Donald C. Searing,

Appellant-Petitioner,

v.

Karen Vivas,

Appellee-Respondent.

April 27, 2017

Court of Appeals Case No.

84A05-1609-DR-2144

Appeal from the Vigo Superior 

Court

The Honorable Matthew Headley, 

Special Judge

Trial Court Cause No.

84D01-1407-DR-5999

Brown, Judge.
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[1] Donald C. Searing (“Father”) appeals the trial court’s order granting primary 

physical custody of the parties’ child, C.S., to Karen Vivas (“Mother”). Father 

raises five issues which we consolidate and restate as whether the court properly 

awarded physical custody of C.S. to Mother. We affirm.

Facts and Procedural History

[2] Mother is from Manila, Philippines, Father is from Terre Haute, Indiana, and 

they met online. The parties married in the Philippines and C.S. was born in 

the Philippines on November 3, 2010, and is a citizen of both the United States 

and the Philippines. In a prior appeal, we stated the facts as follows:

On April 9, 2014, Mother and C.S. left for a six-week vacation to 

visit family in the Philippines. The couple had been fighting 

prior to the vacation and, two days into the vacation, Father told 

Mother he wanted a divorce. Father told Mother that he would 

continue to support her until she found a job and obtained her 

own apartment but Mother refused. Mother and C.S. were 

scheduled to return in May but did not return to the United 

States until August 25, 2014 when Mother’s friends offered 

Mother and C.S. a place to live in Texas. At some point, Mother 

and C.S. moved to Michigan, where Mother worked for Meijer, 

until finally settling in California in December 2014. In the year 

following the parties’ separation, Mother travelled with C.S. to 

the Philippines, Hong Kong, Texas, Michigan, California, Las

Vegas, and Singapore. Mother never received consent from 

Father to travel with C.S. and often did not inform him of when 

or where she traveled with C.S.

* * * * *
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In November of 2014, Father saw C.S. for the first time since he 

and Mother left for the Philippines in April. Father became 

aware that Mother and C.S. were in Michigan after a Michigan 

CVS called Father regarding a prescription for C.S. Prior to 

receiving that call, Father did not know that Mother and C.S. 

had returned to the United States. That weekend, Father drove 

to Michigan and spent approximately two hours with C.S. at a 

mall under Mother’s supervision. Father had been unable to 

speak to C.S. for approximately five months prior to this visit. . . 

. 

In December of 2014, Father purchased Christmas gifts for C.S. 

and made them available for pick-up at a California Walmart 

near Mother’s residence because Mother would not provide an 

address where the gifts could be shipped. Mother later told 

Father to cancel the presents because she could not make the 

drive to the Walmart in time. After the order had been cancelled, 

Mother took C.S. to pick up the presents and told C.S. that 

Father did not get him any presents.

Searing v. Vivas, No. 84A05-1506-DR-530, slip op. at 3-4 (Ind. Ct. App. Mar. 8, 

2016). 

[3] Meanwhile, on July 30, 2014, Father filed a petition for dissolution of marriage. 

Id. at 4. Summons was issued by international mail to Mother’s address in 

Manila but was returned indicating that Mother had not been served. Id. 

Father served Mother by publication in November of 2014. Id. The trial court 

held an initial hearing on December 11, 2014, at which Mother was not present. 

Id. At the hearing, the trial court dissolved the parties’ marriage, split the 

parties’ debts, indicated that custody could not be determined due to Mother’s 
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absence, and ordered that Father was entitled to parenting time pursuant to the 

Indiana parenting time guidelines until custody could be determined. Id.

[4] On January 12, 2015, Mother requested relief from the judgment and a hearing 

was set. Id. at 5. On January 30, 2015, Father requested an initial custody and 

support determination. Id. On February 20, 2015, the court held a scheduling 

hearing at which Mother was present by telephone. Id. The court set a final 

hearing for May 4, 2015, and ordered that, because “[Father] has only seen 

[C.S.] for a few hours in the last ten (10) months,” Father be permitted to Skype 

with C.S. every Saturday and that the parties arrange dates during which Father 

can fly to California to visit C.S. Id. Mother did not agree to any dates for 

Father’s visitation. Id.

[5] On March 31, 2015, Father filed a motion for emergency hearing and a verified 

motion for restraining order as to C.S.’s passport. Id. On April 8, 2015, an 

emergency hearing was held to set dates for Father’s visitation. Id. The court 

ordered that Mother would make C.S. available for pick up on April 19, 2015, 

that Father would pick up C.S. in California on that date and return to Indiana 

with C.S., and that C.S. would stay with Father until the final hearing on May 

4th. Id. 

[6] The court held a hearing on May 4, 2015, to determine custody and settle all 

other pending issues. Id. at 6. Father submitted several exhibits into evidence 

including pay stubs, money transfer records, and over 600 text and Facebook 

messages exchanged between the parties. Id. Father submitted a transaction 
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history of his account with a money transfer service which showed that he sent 

Mother $2,200 in April and May of 2014 while Mother and C.S. were in the 

Philippines. Id. 

[7] On May 27, 2015, the court ordered that Mother have primary physical custody 

of C.S., that the parties have joint legal custody, and that Father have parenting 

time. Id. at 17-19. On June 1, 2015, Father filed a notice of appeal. 

[8] On March 8, 2016, we issued a memorandum decision noting that Mother did 

not file an appellee’s brief and finding that the trial court’s conclusions were not 

supported by the evidence when reviewed under a prima facie standard. Id. at 2. 

Father challenged eight of ten findings of fact outlined in the trial court’s order, 

and we addressed the findings found to be dispositive including:

8. Divorce under the best of circumstances, especially when 

children are involved, is difficult at best. Add to the mix that 

respondent is from another country, from a different culture, and 

that petitioner chose to reveal his intent to divorce by telephone 

during his wife’s vacation out of the country, and you have the 

perfect recipe for the disaster which befell this couple during the 

last twelve (12) months. While the court does not condone any 

attempt to thwart parenting time or to denigrate another parent 

in the eyes of a child, what has occurred in this case is at least 

explainable. Petitioner acknowledges as much in his regret over 

the timing of his decisions. 

9. A voluminous amount of text messaging and other internet 

communications were introduced during the hearing. A number 

of messages were filled with vitriol, pain, anger and threats. It is 

noteworthy, however, that a number of communications were 

not. Indeed, they contained communication you would not 
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expect between two parties navigating their way through the 

initial stages of a divorce, custody and support issues. Each side 

can with equal force pick out messages in support of their own 

testimony and in opposition to the other’s.

10. [Mother] did not deny any of the communications entered 

into evidence. She explained the regretful ones were fueled by 

anger, hurt, uncertainty and a desire to protect her son. She also 

testified that she is fully willing to comply with all court orders 

regarding custody and parenting time. The court finds these 

statements credible. Time will tell if faith in [Mother’s] word is 

justified. 

Id. at 22-23. 

[9] We held:

We fail to see how being from a different culture in any way 

justifies or explains Mother’s attempts to thwart parenting time 

or denigrate Father to C.S. Similarly, although Father may 

regret the timing of his decision to reveal his desire to divorce 

Mother while she was in the Philippines, Mother’s resulting poor 

emotional state does not lessen the severity of her yearlong 

alienation of C.S. from Father. The trial court found that both 

Mother and Father sent accusatory messages, made regrettable 

choices, and could “with equal force” pick out evidence 

supporting their own testimony. However, a thorough review of 

the messages exchanged between the parties overwhelmingly, if 

not entirely, supports Father’s arguments regarding (1) Mother’s 

alienation of the child from Father by disparaging Father and 

preventing communication with C.S., (2) Father’s monetary 

support of Mother and C.S., (3) Mother’s repeated dishonesty to 

Father and to the trial court, (4) indications that Mother has been 

emotionally unstable, and (5) evidence that C.S.’s time with 

Mother in the past year has had a detrimental effect on C.S. both 
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mentally and physically. Accordingly, we find that the trial 

court’s findings are unsupported by the evidence.

Id. at 23-24.

[10] We agreed with Father that it was in C.S.’s best interest that Father have 

primary physical custody and that the trial court’s determination to the contrary 

was clearly erroneous. Id. at 26. We noted that Mother had provided little 

stability for C.S. in the year she had custody. Id. At the time of the final 

hearing, Mother was living in California with friends. Her boyfriend, Jon, 

helped take care of C.S., helped support Mother and C.S., and, according to 

Mother, had a good relationship with C.S. Id. at 28. In discussing the mental 

and physical health of all individuals involved, we observed Mother frequently 

told C.S. information about Mother and Father’s domestic and legal issues 

which upset C.S., that C.S. developed a severe rash and blisters over a large 

area of his buttocks while in Mother’s care, that upon being returned to Father 

a year later in April 2015, Father took C.S. to the doctor where he was 

diagnosed and treated for scabies, and that C.S. had significant scarring from 

the untreated scabies. Id. at 28-29. We also observed that messages from 

Mother revealed that she had frequent and severe emotional outbursts and 

mood swings, had made threats to Father, and frequently fabricated stories. Id.

at 30. 

[11] We observed that the trial court was making an initial custody determination 

where there is no presumption in favor of either parent. Id. at 32. We held that 
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the best interest analysis overwhelmingly suggested that placement with Father 

was in the best interest of the child. Id. Specifically, we stated:

Mother has demonstrated that she is emotionally unstable, has 

provided C.S. with little consistency in his living situation, has 

threatened to leave the country with C.S. permanently to avoid 

the court’s jurisdiction, shares inappropriate personal and legal 

information with the child, and does not acknowledge the 

potential deleterious effects her actions may have on C.S[.], 

choosing instead to blame Father for C.S.’s emotional issues. 

Furthermore, Mother failed to provide adequate medical 

treatment for C.S.’s scabies for a year resulting in significant 

scarring.

* * * * *

Although we give the trial court significant discretion in family 

law matters, there is simply a complete lack of evidence which 

suggests that Mother is better equipped to parent the child and 

that it is in the best interest of the child for Mother to have

primary physical custody. While there is significant evidence 

that Mother’s actions have detrimentally affected C.S. and 

questions regarding her ability to provide a stable home life for 

C.S., there is no substantial evidence that would create any 

similar concerns regarding Father’s ability to care for C.S. 

Accordingly, we find that the trial court’s conclusions are clearly 

erroneous.

Id. at 32-33. We reversed the trial court’s order granting physical custody of 

C.S. to Mother, ordered that Father be given physical custody of C.S., and 
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remanded for recalculation of child support obligation.1

 Id. at 33-34. The 

opinion was certified on April 18, 2016.2

 

[12] Meanwhile, on March 21, 2016, Mother filed a Verified Petition to Modify 

Custody; Request for Hearing, Verified Petition for Temporary Custody of the 

Minor Child and Proposed Order.3

 On April 13, 2016, the court granted 

Father’s motion for a change of judge. 

[13] On July 29, 2016, the court held a hearing. Father testified that he lived in a 

three-bedroom house he had recently moved to with his wife, Grace, who was 

pregnant, their youngest son, and his nine-year-old stepdaughter. He testified 

that he began working at the post office a little over a month earlier, that he 

accepted the post office position for better income than his previous job, and

that his new position enabled him to spend more time with his children. Father 

testified that he did not believe Mother’s mental health had improved and that 

she exhibited additional unstable or overly emotional activities. Father testified 

that he had C.S. in April and May, that C.S. had been visiting with Mother for 

summer visitation, and that the day of the hearing was supposed to be the last 

day of that visitation. He testified that his attorney advised him at some point 

 

1 Judge Baker dissented and stated that our standard of review compels us to affirm because sufficient 

evidence and inferences supported the trial court’s order. Searing, slip op. at 35-37.

2 The record does not reveal that the trial court ever entered an order granting physical custody of C.S. to 

Father. 

3 The record does not contain a copy of this petition.
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that he had primary physical custody going back to March 8th when this Court 

issued its opinion. 

[14] Mother testified that she lived in a one-bedroom condo in California, was 

looking for a larger home, but did not have a move-out date yet. She also 

testified that she married Joe Thomas the previous Sunday, that she had been in 

a relationship with him for fourteen months, and that she could now provide 

insurance for C.S. She also testified that C.S. did not go to Indiana for winter 

parenting time because she could not afford the plane ticket to send him. She 

stated that she was supposed to pick C.S. up on April 5, 2016, following 

parenting time in Indiana, but C.S. did not return until the end of May. Father 

testified that his attorneys informed Mother’s attorneys that he was keeping 

C.S. based upon this Court’s decision, and that he deducted $500 from the 

amount Mother owed him based upon the nonrefundable airline ticket Mother 

had purchased for April 5, 2016. 

[15] On September 2, 2016, the court entered an order awarding physical custody of 

C.S. to Mother. The order states in part:

After the May, 2015 Trial Court Order, [Father] properly 

appealed the decision, and on March 8, 2016, the Court of 

Appeals issued its decision, reversing the Trial Court’s decision. 

Mother immediately filed for a change of judge and a petition for 

modification of custody – even before the Appellate Court’s time 
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for certification had run.[4]

 Thereafter, [Father] has custody of 

the child for a short period of time (early April – late May, 2016), 

and then [Mother] exercised extended parenting time over the 

summer. All this is gleamed [sic] from the Trial Court’s Order, 

the Chronological Case Summary, and the Court of Appeal’s 

[sic] decision and this judge’s temporary summer order.

There were some motions and argument filed regarding at what 

point in time this Court could hear evidence from – was it the 

original Trial Court’s Order date forward, or the Court of 

Appeal’s [sic] Order date forward. It appears to this Special 

Judge that it must consider evidence since the original Trial 

Court’s decision. Otherwise, a full (almost) year of what was 

going on in the child’s life would be “lost”. Logically, if 

something significant happened after the Trial Court’s decision, 

but before the Appellate Court’s decision (jail, molestation, new 

job, re-marriage, mental health commitment, etc.) then the full 

facts and the full “picture” would not be available. As such, 

Court is going to consider all the evidence since the Trial Court’s 

May, 2015 decision.

Facts:

Since that time, both parents and their lives have changed.

1. Residence:

a) Father has moved within the Terre Haute area. Father’s 

home is now near a railroad track and the reason for moving is 

 

4 The chronological case summary indicates that Father’s counsel filed a Motion for Change of Venue from 

Judge on March 14, 2016. 
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for a larger house to accommodate their growing family.

b) Mother has moved within the Huntington Beach, Southern 

California area. Mother and her new husband live in his one 

bedroom condo, but are looking for a larger space.

2. Job:

a) Father now works for the Post Office.

b) Mother has a new job.

3. Family:

a) Father’s family consists of himself, his wife, his wife’s 9 year 

old son,[5] their 2 year old son, their to-be-born[-]anytime child, 

and [C.S.].

b) Mother’s family consists of herself, her new husband Joe, and 

[C.S.].

4. Schooling:

a) Father has not had the child enrolled in schooling since he 

assumed custody. He has the child enrolled in daycare, with a 

family friend – who does not hold a daycare license.

b) Mother had the child in a pre-school, what California calls a 

“preppy school”. His teacher, Tara Holmes, testified that [C.S.]

 

5 Father testified that C.S. has a nine-year-old stepsister. 
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was well behaved, well liked, and happy at school.

5. Spouses: 

a) Father’s wife was unable to testify as she was on bed rest with 

her impending birth of their child.

b) Mother and her spouse, Joe Thomas, were married shortly 

before this trial. They have known each other since July 4, 2015. 

He is a branch manager at a bank in California. He has health 

insurance available for [Mother] and [C.S.] via his employer. His 

family is from the Huntington Beach area, and many still remain 

in that area. Joe has played a significant role with [C.S.]’s needs.

6. Spring Break, 2016:

Father had parenting time of the child for this event in Terre 

Haute. At the conclusion of this, [Mother] was to fly out and 

pick up the child, and was actually at the airport about to leave 

when she learned from her attorney that she would not be getting

the child – due to the Court of Appeals’ decision. Father did not 

call or notify [Mother] of this. Father admits, in retrospect, that 

he handled this poorly. Mother was “out” approximately 

$500.00 for the plane ticket due to this. 

There were a series of text messages around March 21, 2016 in 

which [Father] was not completely forthcoming about his intent 

with the return of the child.

7. Telephone Calls: 

Mother is from the Philippines, and English is her second 

language. Her spoken English was, at times, difficult to 

understand. Mother and [Father] had a telephone conversation 
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which was played for the Court (see Exhibit 16). Clearly, 

[Mother] was quite distraught about the whole custodial 

situation.

8. Text Messages: 

Approximately 100 pages of text messages were introduced by 

[Father] at trial. In [Mother’s] text messages, one can observe 

that her text is similar to listening to a person who has English as 

a second language. The text in Exhibit 14, for instance, shows 

the difficult relationship between [Mother] and step-mother. It 

was suppose [sic] to be about the child’s medical insurance 

coverage, but turned into a discussion of [Mother] calling stepmother names, to step-mother bringing [Mother’s] nationality 

into the discussion, and [Mother’s] discontent that 

Grace/[Father’s] relationship was the cause of 

[Mother]/[Father’s] marriage break-up.

Other text messages (Exhibit 10) (Exhibit 13) involve disputes 

about payment/non-payment of child support, and other related 

disagreements (car loan).

Exhibit 28 details that [Mother] is getting married to Joe and that 

she didn’t tell [Father] that the wedding is interfering with 

[Father’s] skype time with [C.S.]. In another text, [Father] taunts 

[Mother] about [Mother] not being able to move the case to 

California.

* * * * *

Conclusion:

There has been a substantial change for the child, and [Father’s]

family, and [Mother’s] family. Mother has stabilized after 
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moving to the United States, moving to California (getting stable 

housing and a job) getting married to a man who she dated for 

approximately one year (who was significantly involved in the 

child’s life), steady income, obtained schooling for the child, got 

him to his doctor/dentist appointments – in short did what she 

should do.

Father’s life, too, has changed. He is going to have a newborn, a 

new job, a new house. Father’s focus was more on what 

[Mother] has done wrong then [sic] what he actually does with, 

and for, the child.

Here, both parents want custody of the child (obviously) and as 

[Father] put it, the child would like to be with both [Mother] and 

[Father] – which just can’t happen. Joe is quite involved with the 

child, as is Joe’s family – even before the marriage to [Mother]. 

The child has obviously adjusted well to his school/school

friends in California. Mother appears to be much more stable 

than before. She was basically homeless, jobless, and on her 

own. Father wasn’t paying support regularly, which is significant 

for [Mother] at that time. Mother has secured housing, a new 

husband, and a new job – in short, a new life. She has always 

provided for the child, getting him enrolled in school, going to 

doctors’ appointments, and taking him for play[.]

Court concludes that it is in the best interest of the child for 

physical custody of the child to be with [Mother] when 

considering the factors in I.C. 31-17-2-8 and 31-17-2-21. Father 

should have extended parenting time with the child. Parties are 

to share equally for [C.S.]’s cost of flying. Father should have 

Skye [sic] opportunities with the child each Wednesday and 

Sunday – 6:00 p.m. California time, if the parties can not agree to 

a time.

Parties are to submit a Child Support Obligation Worksheet 
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based on their current incomes, and any child support arrearage 

calculations (and how to cure said arrearage if there is some) 

within 30 days of this Order.

Mother shall not take the child out of the country. Passports are 

to be held by [Father].

Transfer of the child to [Mother] should occur in approximately 

three (3) weeks from the date of this Order, to get the best flight 

rate – the weekend of September 23rd.

Appellant’s Appendix II at 15-22.

Discussion

[16] The issue is whether the trial court abused its discretion in granting Mother’s 

petition to modify custody. Father points out that C.S. was with him for only 

seven weeks as primary physical custodian and there was no meaningful basis 

upon which to determine whether the existing arrangement was in C.S.’s best 

interest or should be modified. He asserts that while changes in circumstances 

in Mother’s household may be considered in a best interest analysis, they 

cannot, standing alone, form the basis of a finding of a substantial change in 

circumstances necessary to warrant modification of a custody order. 

[17] Father further argues that the changes the trial court identified in his household 

do not justify a modification of custody, and that the trial court failed to 

consider evidence of Mother’s continuation of conduct that this Court discussed 

and disapproved just five months previously. He asserts that the court 

erroneously stated that his wife brought Mother’s nationality into the discussion 
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and that he taunted Mother about not being able to transfer the case to 

California, and that it erred in finding that Mother appeared to be more stable 

than before. Father also argues that the standard the court erroneously applied 

was one for initial custody. 

[18] Mother contends that Father is asking this Court to reweigh the evidence and 

judge the credibility of witnesses. She argues that the trial court considered the 

fact that C.S. spent the majority of his life in Mother’s care and custody, that 

C.S. was intertwined in the Huntington Beach community via his participation 

in the Preppie K school, and that C.S. has strong ties to his stepfather’s 

extended family. 

[19] We review custody modifications for an abuse of discretion and have a 

“preference for granting latitude and deference to our trial judges in family law 

matters.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). “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 court’s 

judgment.” Id. The Indiana Supreme Court explained the reason for this 

deference in Kirk:

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 
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have found its preponderance or the inferences therefrom to be 

different from what he did.

Id. (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). 

See also Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). 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.” Steele-Giri, 51 N.E.3d at 129 (quoting Kirk, 770 

N.E.2d at 307). In the initial custody determination, both parents are presumed 

equally entitled to custody, but a petitioner seeking subsequent modification 

bears the burden of demonstrating the existing custody should be altered. Kirk, 

770 N.E.2d at 307. We may neither reweigh the evidence nor judge the 

credibility of the witnesses. Fields v. Fields, 749 N.E.2d 100, 108 (Ind. Ct. App.

2001), trans. denied.

[20] The trial court’s findings were entered pursuant to Ind. Trial Rule 52(A) which 

prohibits a reviewing court on appeal from setting aside the trial court’s 

judgment “unless clearly erroneous.” Dunson v. Dunson, 769 N.E.2d 1120, 1123 

(Ind. 2002). When reviewing the trial court’s findings of fact and conclusions 

thereon, we consider whether the evidence supports the findings and whether 

the findings support the judgment. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 

(Ind. 1997). Findings are clearly erroneous only when the record contains no 

facts to support them either directly or by inference. Id. A judgment is clearly 

erroneous if it applies the wrong legal standard to properly found facts. Id. In 

order to determine that a finding or conclusion is clearly erroneous, our review 
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of the evidence must leave us with the firm conviction that a mistake has been 

made. Id.

[21] The child custody modification statute provides that “[t]he court may not 

modify a child custody order unless: (1) the modification is in the best interests 

of the child; and (2) there is a substantial change in one (1) or more of the 

factors that the court may consider under [Ind. Code § 31-17-2-8] . . . .” Ind. 

Code § 31-17-2-21. Ind. Code § 31-17-2-21(c) provides: “The court shall not 

hear evidence on a matter occurring before the last custody proceeding between 

the parties unless the matter relates to a change in the factors relating to the best 

interests of the child as described by section 8 . . . .” Ind. Code § 31-17-2-8 lists 

the following factors:

(1) The age and sex of the child.

(2) The wishes of the child’s parent or 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 parent or parents;

(B) the child’s sibling; and

(C) any other person who may significantly affect the 

child’s best interests.
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(5) The child’s adjustment to the child’s:

(A) home;

(B) school; and

(C) community.

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

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

parent.

[22] A remarriage by itself does not constitute a change in circumstances sufficient 

to support a change in custody. Julie C. v. Andrew C., 924 N.E.2d 1249, 1257 

(Ind. Ct. App. 2010). However, when a subsequent marriage occurs in 

conjunction with other substantial changes in the factors under Ind. Code § 31-

17-2-8, they may constitute a substantial change in circumstances. Id. (citing 

Bryant v. Bryant, 693 N.E.2d 976, 979 (Ind. Ct. App. 1998), reh’g denied, trans. 

denied).

[23] As noted, we give substantial deference to trial court judges in family law 

matters. While the evidence might have supported denying Mother’s petition, 

such denial was not required. Based upon the court’s findings and conclusions, 

including that Mother had stabilized, married, achieved a steady income, 

acquired stable housing, obtained schooling for C.S., and taken him to his 

doctor/dentist appointments; the significant involvement of Mother’s new 
Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017 Page 21 of 21

husband in C.S.’s life; and C.S.’s adjustment to his friends and school in 

California, we cannot say, that the court abused its discretion in determining 

that Mother demonstrated that a custody modification is in the best interests of 

C.S. and that there was a substantial change in one of the necessary factors. See 

Walker v. Nelson, 911 N.E.2d 124, 129 (Ind. Ct. App. 2009) (holding that the 

trial court did not abuse its discretion when it modified custody and noting that, 

although any one factor may not necessarily warrant a change of custody, 

consideration of all the factors is sufficient to establish that modification is in 

the best interests of the child and a substantial change had taken place in the 

interaction and interrelationship of the child with the child’s parents, 

adjustment to his home and community, and the health of all of the individuals 

involved); Barnett v. Barnett, 447 N.E.2d 1172, 1175 (Ind. Ct. App. 1983) 

(holding that the trial court did not abuse its discretion in modifying custody 

considering a number of factors including the relative stability of the parents).6

Conclusion

[24] For the foregoing reasons, we affirm the trial court’s order.

[25] Affirmed.

Vaidik, C.J., and Bradford, J., concur. 

 

6 We note that, while we reversed the prior award of custody to Mother, the trial court judge entering the 

second order granting Mother custody was a different trial court judge.