Pursuant to Ind.Appe llate 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.

ATTORNEY S FOR APPELLANT : ATTORNEY FOR APPELLEE : BRYAN LEE CIYOU JANE G. COTTON LORI B. SCHMELTZER Anderson, Indiana Ciyou & Dixon, P.C. Indianapolis, Indiana


## IN THE

COURT OF APPEALS OF INDIANA

IN RE THE PATERNITY OF: B.V.L. , ) ) S.B., ) ) Appellant

- Respondent , ) ) vs. ) No. 48A02

- 1206

- JP

- 491 ) B.L. , ) ) Appellee

- Petitioner

. )

APPEAL FROM THE MADISON SUPERIOR COURT The Honorable George Pancol , Judge Cause No. 48D02

- 1010

- JP

- 401
February 28, 2013 MEMORANDUM DECISION

– NOT FOR PUBL ICATION RILEY, Judge2 STATEMENT OF THE CASE Appellant

- Respondent , S.B. (Mother) , appeals the trial court’s judgment granting custody of two

- year - old B.V.L. to Appellee

- Petitioner , B.L. (Father ).
We affirm

. ISSUE

Mother raises two issues on appeal , wh ich we consolidate and restate as follows: Whether the trial court abused its discretion when it awarded Father custody of B.V.L.

FACTS AND PROCEDURAL HISTORY The facts most favorable to the trial court’s judgment reveal that B.V.L. was born on March 3, 2010

. Two days later, Mother and Father signed a paternity affidavit. Following B.V.L.’s birth, Mother began to act erratically. She stayed up all night , slept all day, and she did not bathe

. Medication for anxiety and depression did not help her

. In September 2010, she left the home she shared with Father and took B.V.L. with her

. She told police officers that Father had threated to kill her and B.V.L. and got a protective order. Father denied making the threats.
A fter leaving, Mother periodically r eturned to the home unexpectedly. For example, one day Father got out of the shower to find Mother standing in the bathroom staring at him. Father eventually changed the locks on the doors, but Mother broke a window to get into the house, cut her arm on the broken glass, and left a trail of blood throughout the home. Mother explained that she had returned to the house to force Father3

to visit with B.V.L. even though there was a protective order in place

. Shortly thereafter, Father obtained a protective order against Mother. On October 18, 2010, Mother filed a Petition to Establish Paternity of a Child and Provide for his Custody, Support, and Maintenance. Father filed a response on November 1, 2010. Three weeks later, on November 23, 2010, Father f iled a Petition for Emergency Custody, wherein he alleged that he had reasonable cause t o believe Mother suffered from extreme mood changes, had short

- term memory loss, and exhibited irrational thought s and speech patterns. On November 29, 2010, the trial court ordered that “pending further hearing custody will be placed with [Mother] reserving to the [Father] all reasonable rights of visitation.” (Appellant’s App. P. 32). On January 13, 2011, the t ri al court ordered Father to pay child support. In Febr uary 2012, Father filed a Petition for Custody asking for full custody of B.V.L . The trial court held hearings on March 19, 2012, and May 7, 2012. Testimony at the hearing s revealed that Mother ha d moved several times since the parties separate d

. She mov ed from Father’s house to her mother’s house and then to her
sister and brother

- in

- law’s house. While she was at her sister’s house, her brother

- in

- law moved out, and her sister’s boyfriend, David Blessing (Blessing) , moved in. Blessing ha s a significant criminal history including driving while intoxicated, driving while suspended, and public intoxication. He also has a reputation as a partier and a drug user. The evidence further reveals that Mother’s sister and Blessing once got into a fight
because B lessing ate all of B.V.L.’s food. Blessing is usually present when Father picks4

up B.V.L. and makes it a point to kiss B.V.L. on the lips before the child leaves because Blessing knows this makes Father feel uncomfortable. Mother has not had stable housi ng or employment since she left Father’s house.
On the rare occasions that Mother is present when Father picks up B.V.L., Mother is very insulting to Father in front of B.V.L. For example, Mother tells B.V.L. that his “stinky old dad” or his “dumbass dad ” has arrived to pick him up. (Transcript, pp. 102, 106)

. Mother also tells B.V.L. to call Father an “asshole.” (Tr. p. 105). When it is time for B.V.L. to return to Mother’s house, the child will cry, scream, grab on to his car seat , and beg not to go

. Although Father has attempted to remain cordial with Mother, the exhibits in this

case are replete with disparaging text messages that Mother has sent to Father. For example, in one message, Mother t old Father to “F*** off, pscho , ” and in another
messag e, she told him that he was a “crappy person.” ( Petitioner’s Exh

. 7 ) . When Father remind ed Mother that she need ed to keep the trial court informed of her current address, Mother respond ed , “U r really immature. Grow up u really think they would give a c hild custody of a child? Ha!” ( Petitioner’s Exh

. 7 ) . When Father confronted Mother about failing to buckle B.V.L. in his car seat and threatened to report her to the police, Mother responded , “Quit, cause nobody cares what you say. U r a liar. Call th e cops, I love it. It only makes you look stupid.” ( Petitioner’s Exh

. 7 )

. Mother also threatened to call the police if Father attended B.V.L.’s doctor’s appointment and then refused to tell Father what the doctor had said about B.V.L.’s5

medical condition . Specifically, Mother responded as follows by te x t to Father’s requests for information about B.V.L: “Leave me alone. I’m not going to tell you again. Loser.” ( Petitioner’s Exh

. 16 ) . When Father asked Mother to co

- parent B.V.L. with him, Mother
resp onded , “Those days are long gone pscho . Everything you say is complete bullshit. U are fake.” ( Pet itioner’s Exh

. 16 )

. On e night when Father brought B.V.L. home with a toy mower and flashlight, Mother refused to take the flashlight, kicked the toy mo wer off the porch, and told Father that she did not want Father’s “shit” in her house. (Tr. p. 95). The evidence presented at the hearing reflects that Father and B.V.L. have a close relationship. B.V.L. adore s Father, talks about him all the time and r ecently insisted on Father taking care of him when he was sick. Father is a “hands on” parent who takes B.V.L. fishing and boating. (Tr. p. 73). Father also has an eleven

- year - old daughter (Daughter) from a previous relationship. Mother complained in t he past that Father loved Daughter more than he loved her. One day , Father and Daughter picked up B.V.L. from Mother at a local park. Father , Daughter, and B.V.L. walked to a nearby playground. Mother and her friends stared at Father and Daughter and mo cked them. Daughter said she was very uncomfortable and asked to leave the park. When Father mentioned the incident to Mother, Mother responded: “your pretty scary yourself teach ur daughter how to have a backbone and not to follow in your paranoid psch o footsteps. Ur both weirdos.” ( Petitioner’s Exh

. 7 )

.6

Following the hearing, the trial court issued an order awarding Father custody of B.V.L. Mother now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION At the ou tset, we note our preference for granting latitude and deference to the trial court judges in family law matters. Kirk v. Kirk , 770 N.E.2d 304, 307 (Ind. 2002). The Indiana Supreme Court explained the reason for this deference in Kirk :

While we are not a ble to say the trial court could not have found otherwise than he did upon the evidence introduced below, this [c] ourt 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 r ecord, 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 prep onderance 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)). Therefore, on appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by the appellant before there is a basis for reversal. Id. We no w turn to the issue in this case. As a preliminary matter, Mother is correct that she initially had custody of B.V.L. by operation of l aw pursuant to Indiana Code section 31

- 14

- 13

- 1. Specifically, the statute provides that a “biological mother of a child born out of wedlock has sole legal custody of a child.” However, because Father established paternity of B.V.L. within a reasonable p eriod thereafter, the trial court was faced with an initial determination of custody between Mother and Father pursuant to Indiana Code section 31

- 14

- 13

- 2. See In7

re Paternity of Winkler , 725 N.E.2d 124 (Ind. Ct. App. 2000). Further, because Father’s

cus tody petition requested “full custody,” of B.V.L., Father was clearly requesting both legal and physical custody of his minor son. Mother is therefore appealing an order that gave Father sole legal and physical custody of his son. The gravamen of Mother’s argument is that the trial court erred in concluding it is in B.V.L.’s best interests to be placed in Father’s custody. Child custody determinations fall squarely within the discretion of the trial court and will not be disturbed except for an abuse of d iscretion. Aylward v. Aylward , 592 N.E.2d 1247, 1250 (Ind. Ct. App. 1992). On review, we will not reweigh the evidence, judge the credibility of witnesses, or substitute our judgment for that of the trial court. Id. We will not reverse unless we find
t he trial court’s logic is against the logic and effect of the facts and circumstances before
the court or the reasonable inferences drawn therefrom. Id. This case arises out of a paternity action. Indiana Code s ection 31

- 14

- 13

- 2 provides in relevant par t that: The court shall determine custody in accordance with the best interests of the child. In determining the child ’ s best interests, there is not a presumption favoring either parent. The court shall consider all relevant factors, including the followi ng:

(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.8 (6) The mental and physical health of all indivi duals involved. (7) Evidence of a pattern of domestic or family violence by either parent.

Our revi ew of the evidence reveals that Mother is constantly calling Father disparaging names and encour aging B.V.L. to do the same. Mother will not allow B.V.L. to bring home items that Father has given him. At least one time Mother refused to allow Father to attend B.V.L,’s medical appointment and then refused to give him information about his son’s medical condition. Mother has failed to buckle B.V.L. in his car seat , and has allowed B.V.L. to live at Mother’s sister’s house with a convicted felon. Father, on the other hand, is very respectful of Mother in B .V.L.’s presence . Father and B .V.L. are very close. B.V.L. talks about Father all the time and recent ly insisted on Father taking care of him when he was sick. Father is a “hand’s on” parent who takes B.V.L. fishing and boating. Further, when it is time to go to Mother’s house, B.V.L. will cry,

scream , grab on to his car seat, and beg not to go.
In a ddition, Mother appears to have had mental health issues since B.V.L.’s birth. Medication has not helped her. She left home with B.V.L. when he was six months old and told police officers Father had threatened to kill th em both. She has not had stable
h ousing or employmen t since that time.
CONCLUSION Based on the foregoing, we conclude that the trial court did not err i n awarding Father legal and physical custody of B.V.L. Affirmed.9

BAKER, J. and BARNES, J. concur