Court of Appeals of Indiana | Memorandum Decision 34A02-1708-DR-1828 | March 7, 2018 Page 1 of 12

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.

ATTORNEY FOR APPELLANT

Justin K. Clouser

Noel Law

Kokomo, Indiana

ATTORNEY FOR APPELLEE

Derick W. Steele

Kokomo, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

M.B.,

Appellant-Respondent,

v.

G.G.,

Appellee-Intervenor.

March 7, 2018

Court of Appeals Case No.

34A02-1708-DR-1828

Appeal from the Howard Circuit 

Court

The Honorable Lynn Murray, 

Judge

Trial Court Cause No.

34C01-0812-DR-1261

Bailey, Judge.
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Case Summary

[1] M.B. (“Father”) appeals from a custody order concerning his two daughters, 

S.B. and L.B. (the “Children”), wherein the trial court granted physical custody 

to G.G., the Children’s stepfather (“Stepfather”), who had cared for the 

Children before and after the death of their mother (“Mother”).

[2] We affirm in part and reverse in part.

Issues

[3] Father presents the following restated issues:

I. Whether there was sufficient evidence to overcome the 

presumption in favor of placing the Children with Father, 

a natural parent; and

II. Whether the trial court abused its discretion in finding a

provision of the Indiana Parenting Time Guidelines

wholly inapplicable.

Facts and Procedural History

[4] Father and Mother married in 2004, and S.B. was born in October 2007. 

Approximately one year later, Father and Mother separated, and Mother 

petitioned to dissolve the marriage in December 2008. Around that time, 

Father was incarcerated for seven months while he awaited trial on charges that 

were ultimately dismissed. After his release, Father moved to Montana, and he 

returned to Indiana in mid-2010. The dissolution action remained pending.
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[5] Meanwhile, Mother began dating Stepfather in 2009. Mother and S.B. moved 

in with Stepfather in January 2010 and moved out in November 2010. At that 

point, Mother and S.B. lived in their own residence for six months. Father and 

Stepfather each visited the residence, and L.B. was conceived. Mother and S.B. 

then returned to Stepfather’s residence; they began living with Stepfather in 

May 2011, and remained there when L.B. was born in November 2011.

[6] Both Mother and Father abused alcohol at times. Father accrued several 

convictions for driving while intoxicated in 2010, 2011, and 2012. As for 

Mother, approximately two weeks after L.B.’s birth in November 2011, Mother 

was found passed out in her vehicle. L.B. was with Father at the time. After 

this incident, Mother was incarcerated. While Mother was incarcerated and

while she participated in a rehabilitation program, Mother’s mother (“Maternal 

Grandmother”) took care of the Children. Stepfather would visit the Children. 

The Children also spent one night with Father around Christmas of 2011.

[7] After Mother completed a rehabilitation program in early 2012, she reassumed 

care of the Children and moved in with Stepfather. Thereafter, Mother, 

Stepfather, and the Children lived together as a family. Mother relapsed at one 

point in 2012, and was sentenced to in-home detention on a conviction of 

driving while intoxicated. After the conviction, Mother maintained her

sobriety. Mother also sought to finalize the dissolution. A final hearing was 

held in July 2012, at which time Father was incarcerated and did not appear. 

After the hearing, the marriage was dissolved and Mother was awarded custody

of the Children. The court reserved other matters pertaining to the Children 
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while awaiting the results of DNA testing, which Father had requested. 

However, no DNA testing was completed in response to the dissolution decree.

[8] From early 2012 to mid-2015, Father had minimal contact with the Children: 

Mother brought the Children to see Father for a few hours in 2013, and Father 

also saw the Children in passing at the grocery store. Meanwhile, Mother and 

Stepfather married in December 2014. Several months later, Mother sought

child support from Father, who responsively denied paternity. The court 

ordered DNA testing, which took place in mid-2015.

[9] Father’s paternity was established on August 14, 2015. One week later, Mother 

unexpectedly died. Father then filed an emergency motion to establish custody; 

Stepfather moved to intervene and sought temporary guardianship of the 

Children. The trial court held a hearing in September 2015, after which it 

granted Stepfather’s motion to intervene, and determined that Stepfather was 

the Children’s de facto custodian. The trial court awarded Stepfather 

temporary legal and physical custody of the Children. The trial court further 

ordered that Father was entitled to parenting time, beginning with weekly 

supervised parenting time. Over time, Father and Stepfather agreed to increase

Father’s parenting time such that Father spent time with the Children on 

alternate Wednesdays and had overnight parenting time on alternate weekends.

[10] On May 30, 2017, the trial court held a final hearing concerning custody and 

associated matters, including parenting time and support. Following the 

hearing, the trial court awarded Stepfather custody of the Children, and ordered 
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parenting time for Father in accordance with the Indiana Parenting Time 

Guidelines. In so ordering, the trial court excluded one of the guidelines.

[11] Father now appeals.

Discussion and Decision

[12] Where an action is “tried upon the facts without a jury,” the trial court is 

obligated to enter special findings and conclusions upon a party’s “written 

request . . . prior to the admission of evidence.” Ind. Trial Rule 52(A). Here, 

prior to the admission of evidence, Stepfather made only an oral request; thus, 

although the court ultimately entered special findings and conclusions, it was 

not obligated to do so. In such instances, we regard the trial court’s findings as

sua sponte findings, see Faver v. Bayh, 689 N.E.2d 727, 730 (Ind. Ct. App. 1997), 

and apply a two-tiered standard of review to any issue covered by the findings, 

Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). That is, we look to 

“whether the evidence supports the findings, and whether the findings support 

the judgment.” Id. “Any issue not covered by the findings is reviewed under 

the general judgment standard, meaning a reviewing court should affirm based 

on any legal theory supported by the evidence.” Id. at 123-24.

[13] In conducting our review, we “consider only the evidence and reasonable 

inferences that are most favorable to the judgment,” In re V.A., 51 N.E.3d 1140, 

1143 (Ind. 2016), giving “due regard . . . to the opportunity of the trial court to 

judge the credibility of the witnesses,” T.R. 52(A). Moreover, we “shall not set 
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aside the findings or judgment unless clearly erroneous.” Id. A trial court’s 

findings are clearly erroneous when the record contains no facts to support 

them either directly or by inference; a judgment is clearly erroneous if it applies 

the wrong legal standard to properly found facts. Town of Fortville v. Certain 

Fortville Annexation Territory Landowners, 51 N.E.3d 1195, 1198 (Ind. 2016). 

Ultimately, we will reverse only upon a showing of clear error: “that which 

leaves us with a definite and firm conviction that a mistake has been made.” 

Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992).

Custody Determination

[14] “Child custody determinations fall squarely within the discretion of the trial 

court and will not be disturbed except for an abuse of discretion,” which occurs 

when the trial court’s decision is against the logic and effect of the facts and 

circumstances before it, or the reasonable inferences to be drawn therefrom. In 

re B.H., 770 N.E.2d 283, 288 (Ind. 2002). The trial court “shall determine 

custody and enter a custody order in accordance with the best interests of the 

child.” Ind. Code § 31-17-2-8; see also I.C. § 31-17-2-21 (requiring a “best 

interests” analysis in modifying child custody). In evaluating a child’s best 

interests, the trial court must consider all relevant factors, including statutory

factors—among them, “[e]vidence that the child has been cared for by a de 

facto custodian.” Id. A de facto custodian is “a person who has been the 

primary caregiver for, and financial support [sic] of, a child who has resided 

with the person for at least . . . one (1) year if the child is at least three (3) years 

of age.” I.C. § 31-9-2-35.5. If there is a de facto custodian, the trial court must 
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consider several additional factors, I.C. § 31-17-2-8, and the court “shall award 

custody of the child to the child’s de facto custodian if the court determines that 

it is in the best interests of the child,” I.C. § 31-17-2-8.5(d). However, there is 

an “important and strong presumption that the child’s best interests are 

ordinarily served by placement in the custody of the natural parent.” B.H., 770 

N.E.2d at 287.

[B]efore 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.

Id. In making its determination, the trial court is not limited to specific criteria, 

although “evidence establishing the natural parent’s unfitness or acquiescence,

or demonstrating that a strong emotional bond has formed between the child 

and the third person, would of course be important.” Id. Furthermore, the 

presumption in favor of the natural parent will not be overcome merely because 

a third party could provide better things in life for the child. Id. Moreover, a

trial court’s “generalized finding” is inadequate to support a determination that 

“placement other than with the natural parent is in a child’s best interests.” Id. 

Rather, the trial court must make “detailed and specific findings.” Id. Whether

the presumption is overcome ultimately “falls within the sound discretion of 

our trial courts, and their judgments must be afforded deferential review.” Id.; 
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see also Steele-Giri, 51 N.E.3d at 124 (acknowledging the “well-established 

preference in Indiana” for giving deference to trial judges in family matters).

[15] Here, the trial court entered thorough findings concerning its decision to place 

the Children with Stepfather, including a finding that Stepfather “has forged 

and maintained a deep emotional bond[] with the [C]hildren as strong as any 

biological parent.” Appellant’s App. Vol. II at 36. The trial court further found 

that severing the custodial relationship “would cause serious emotional damage 

to the [C]hildren,” observing that Stepfather has provided “stability and a 

continuity of nurturing care, especially essential for the [C]hildren, having to 

cope with the loss of their mother.” Id. at 40. The court also acknowledged 

S.B.’s preference to remain with Stepfather and acknowledged the Guardian Ad 

Litem’s opinion that the Children’s long-term interests were best served by 

remaining with Stepfather: “[t]he stability provided by [Stepfather] over the last 

few years is the only they have known and neither girl, especially [S.B.], would 

be able to successfully cope with such a drastic change.” Appellee’s App. Vol. 

III at 30. Ultimately, the trial court found “by clear and convincing, as well as 

compelling, evidence” that it was in the Children’s best interests to remain in 

Stepfather’s custody. Appellant’s App. Vol. II at 40.

[16] Father argues that the evidence is insufficient to overcome the presumption in 

favor of placing the Children with him. In so arguing, Father directs us to 

several commendable changes in his life, and chiefly likens this case to In re 

B.W., 45 N.E.3d 860 (Ind. Ct. App. 2015). Yet, that case involved public policy 

concerns that are not present here. See B.W., 45 N.E.3d at 867 (expressing 
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concern that where a struggling mother had consented to guardianship and then 

turned her life around, an eventual custody determination in favor of a third 

party would discourage struggling parents from seeking a “safety net”). Father 

also argues that awarding him custody would not have severed the relationship

with Stepfather because Father was open to visitation. Moreover, Father

asserts that the court improperly focused on his prior unfitness, and improperly 

reflected on Stepfather’s financial stability and lack of criminal history.

[17] However, we are not free to reweigh the evidence, which indicates that for 

several years of the Children’s young lives, Stepfather assumed a central

parenting role at a time when Father denied his paternity. During that time,

Stepfather developed a strong emotional bond with the Children, and the 

evidence indicates that neither child would be able to cope with a change in 

custody—especially as they still cope with Mother’s death. We accordingly 

conclude that there is evidence sufficient to overcome the presumption in favor 

of Father, and that there is evidentiary support for the trial court’s finding that it 

is in the Children’s best interests to remain in Stepfather’s custody. Thus, we 

discern no abuse of discretion in the trial court’s custody determination.

Parenting Time

[18] Father challenges the trial court’s determination that a provision of the Indiana 

Parenting Time Guidelines is inapplicable. “A trial court’s determination of a 

parenting time issue is afforded latitude and deference; we reverse only when 

the trial court abuses its discretion.” Dumont v. Dumont, 961 N.E.2d 495, 501 
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(Ind. Ct. App. 2011), trans. denied. “No abuse of discretion occurs if there is a 

rational basis supporting the trial court’s determination.” Gomez v. Gomez, 887 

N.E.2d 977, 983 (Ind. Ct. App. 2008). Therefore, “it is not enough that the 

evidence might support some other conclusion,” rather, the evidence “must 

positively require” a different conclusion before there is a basis for reversal. 

Duncan v. Duncan, 843 N.E.2d 966, 969 (Ind. Ct. App. 2006), trans. denied. 

Furthermore, in reviewing the trial court’s decision, “[w]e will not reweigh the 

evidence or judge the credibility of the witnesses.” Gomez, 887 N.E.2d at 983.

[19] The Indiana Code provides that “[a] parent not granted custody of the child is 

entitled to reasonable parenting time rights.” I.C. § 31-17-4-1(a). Moreover, 

there is a presumption that the Indiana Parenting Time Guidelines “are 

applicable in all cases” involving child custody. Ind. Parenting Time 

Guidelines pmbl. (C)(3). A trial court may deviate from those guidelines. See 

id. However, when a deviation results in less than the minimum parenting time 

set forth in the guidelines, the trial court must provide “a written explanation 

indicating why the deviation is necessary or appropriate in the case.” Id.

[20] Here, the trial court ordered that Father generally should have guideline 

parenting time, but the court specified that a particular guideline did not apply. 

The excluded guideline sets forth the opportunity for additional parenting time:

When it becomes necessary that a child be cared for by a person 

other than a parent or a responsible household family member, 

the parent needing the child care shall first offer the other parent 

the opportunity for additional parenting time, if providing the 
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child care by the other parent is practical considering the time 

available and the distance between residences.

P.T. Guidelines § I(C)(3). The trial court explained that this guideline should 

not apply “due to the distance between residences” and the Children’s close 

bond with Maternal Grandmother, “who principally has provided child care 

when needed.” Appellant’s App. Vol. II at 42.

[21] Father argues that the trial court erred in excluding this guideline, asserting (1) 

that the non-custodial parent should have the opportunity for additional 

parenting time “even when a non-household family member is available” and 

(2) that there was no evidence that “the distance between the residences is so 

substantial in nature as to make the option impractical.” Appellant’s Br. at 15.

[22] As to the distance between the residences, the evidence indicates that Father 

and Stepfather live some distance apart: Stepfather lives in Peru and Father

lives in Kokomo. Yet, the guideline already accounts for the practicality of 

extending a parenting opportunity in light of the amount of “time available and 

the distance between residences.” P.T. Guidelines § I(C)(3). Thus, distance 

alone does not provide a rational basis for altogether eliminating Father’s right 

to additional parenting opportunities.

[23] As to the Children’s relationship with Maternal Grandmother, the trial court’s 

findings have evidentiary support. However, “[o]ur family law statutes and 

Guidelines do not provide grandparents with access rights superior to those of 

parents who desire to spend additional time with a child.” D.G. v. S.G., 82 
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N.E.3d 342, 350 (Ind. Ct. App. 2017), trans. denied. Moreover, even if the trial 

court fashioned the deviation to provide stability under the tragic circumstances 

of this case, the deviation is nonetheless overbroad. That is, because the order 

completely excludes the guideline, even if Maternal Grandmother is unable to 

care for the Children, Father has no right to additional parenting opportunities.1 

In this respect, the findings related to Maternal Grandmother do not support 

the decision to eliminate Father’s opportunity for additional parenting time.

[24] We accordingly reverse that portion of the order providing for this deviation.

Conclusion

[25] The trial court did not abuse its discretion in placing the Children with 

Stepfather, but the court abused its discretion in refusing to apply, in all 

circumstances, one of the Indiana Parenting Time Guidelines.

[26] Affirmed in part and reversed in part.

Kirsch, J., and Pyle, J., concur.

 

1 To the extent the trial court sought to proactively preserve a relationship with Maternal Grandmother, we 

observe that Maternal Grandmother could someday seek visitation. See I.C. § 31-17-5-1 (providing that “[a] 

child’s grandparent may seek visitation rights if . . . the child’s parent is deceased.”).