Court of Appeals of Indiana | Memorandum Decision 84A04-1406-JP-261 | March 23, 2015 Page 1 of 11

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

William S. Frankel

Anthony L. Holton

Wilkinson, Goeller, Modesitt, Wilkinson 

& Drummy, LLP

Terre Haute, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In re the Paternity of G.S.

A.H. (Mother),

Appellant-Petitioner,

v.

D.S. (Father),

Appellee-Respondent

March 23, 2015

Court of Appeals Case No.

84A04-1406-JP-261

Appeal from the Vigo Circuit Court

The Honorable David R. Bolk, 

Judge

The Honorable Daniel W. Kelly, 

Magistrate

Case No. 84C01-1105-JP-546

Crone, Judge.

Case Summary

[1] A.H. (“Mother”) appeals the trial court’s modification of custody of her minor 

child, G.S., in favor of D.S. (“Father”). Mother was originally granted primary 
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custody of G.S. and Father was granted parenting time. In October 2013, 

Mother filed her notice of intent to relocate. Father objected to the move and 

filed a petition to modify custody. The trial court entered its order granting 

Father’s petition to modify and awarding primary custody of G.S. to Father. 

On appeal, Mother claims that the trial court abused its discretion because it 

failed to consider the proper statutory relocation factors in denying her request 

to relocate and granting Father’s petition to modify. Mother further asserts that 

the evidence does not support the trial court’s conclusion that relocation was 

not in G.S.’s best interests and that custody modification was warranted. 

Finding no abuse of discretion and sufficient evidence, we affirm.

Facts and Procedural History

[2] G.S. was born out of wedlock on March 10, 2009. Mother and Father signed a 

paternity affidavit at the hospital establishing Father’s paternity. The parties 

remained in a relationship and resided in Terre Haute after G.S.’s birth. That 

relationship eventually ended and the parties appeared in court for the first time 

on September 7, 2011, to establish parenting time and support. Father was 

ordered to pay child support and was granted visitation in accordance with the 

Indiana Parenting Time Guidelines. In its written order, the trial court 

specifically advised the parties regarding Indiana’s Relocation Statute, Indiana 

Code Section 31-17-2.2-1 et. seq., and the notice requirements involved if either 

parent was contemplating a move. 

[3] Five months later, Father filed a petition for temporary restraining order

(“TRO”) to prevent Mother from relocating, without the proper statutory 
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notice, to Pekin, Illinois, in order to take a job at Cracker Barrel located in 

Bloomington, Illinois. The trial court granted the TRO and held a hearing on 

February 13, 2012. Following the hearing, Mother withdrew her request to 

relocate. 

[4] Two weeks later, Mother filed a new notice of her intent to relocate to Pekin. 

Father objected and the court conducted a lengthy hearing on April 24, 2012. 

The parties agreed to submit their dispute to mediation. When the parties failed 

to reach an agreement in mediation, the matter was again heard by the trial 

court on February 1 and 4, 2013. Thereafter, the court issued its order 

permitting Mother to move with G.S. as far as 100 miles from Terre Haute in 

order to accommodate her job opportunity with Cracker Barrel. The court 

acknowledged that although this would still require a forty-five-minute 

commute for Mother, the 100-mile limit on the move would allow Father to 

remain involved in G.S.’s activities as he had been consistently for the first 

three years of G.S.’s life. The court also warned, “If a move of a greater 

distance is made by Mother, custody shall be transferred to Father.” Appellant’s 

App. at 17.

[5] On October 10, 2013, Mother filed yet another notice of her intent to relocate to 

Pekin. Mother claimed that while she had already moved within the 100-mile 

limit to Mahomet, Illinois, she still wanted to move farther to Pekin. Father 

timely filed his objection to the relocation and requested a modification of child 

custody from Mother to Father. An evidentiary hearing was held on April 11, 

2014. Father presented evidence to the trial court which indicated that Mother
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was not actually living in Mahomet and had moved “for all intents and 

purposes” to Pekin with G.S. despite court orders forbidding her from doing so. 

Id. at 17. 

[6] The court concluded in relevant part,

The court’s order of February, 2013 specifically stated that the 100-

mile accommodation to Mother’s job at Cracker Barrel was to allow 

Father to be involved in [G.S.’s] school and extracurricular activities. 

Despite this, Mother enrolled [G.S.] in a preschool in Pekin and that 

very spring allowed her mother to enroll [G.S.] in a teeball league in 

Pekin and told Father nothing about it. Even had Father been so 

informed, as required by the [Indiana Parenting Time Guidelines], the 

three-hour distance from Father’s home would not allow Father, a 

former teeball coach to his older son, to watch any of the games.

This is precisely the deprivation of parental involvement against which 

the court was attempting to protect Father by its order of February, 

2013.

While the evidence regarding the fitness of each party to be the 

primary custodian of [G.S.] is mixed and conflicting, Father appears to 

be genuinely and consistently trying to remain fully involved in 

[G.S.’s] life, while Mother appears equally bent on living in Pekin 

where her mother resides – a distance of three hours away from 

Father, despite the court’s multiple rulings to the contrary.

....

For all the foregoing, the court finds that there has been a substantial 

and continuing change in one or more factor[s] relative to custody and 

that it would be in the minor child’s best interests to be placed in the 

primary care of his father. Mother should be awarded parenting time 

in accordance with the Indiana Parenting Time Guidelines. If the 

Mother should choose to move back to Vigo County, Indiana, the 

scales could possibly be tipped back in her favor on the issue of 

primary custody, but having Father’s role in [G.S.’s] life continually 

diminished by Mother is not in the minor child’s best interests, and 

nothing short of this modification would appear to prevent this at this 
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time. Simply stated, [G.S.] is to be raised by his parents; not by his 

mother and grandmother.

Id. at 18-19. Mother filed a motion to reconsider, which was denied by the trial 

court. This appeal followed.

Discussion and Decision

[7] Mother asserts that the trial court erred in granting Father’s petition for custody 

modification and awarding primary physical custody of G.S. to Father. Our 

standard of review is well settled.

When reviewing a custody determination, we afford the trial court 

considerable deference as it is the trial court that observes the parties’ 

conduct and demeanor and hears their testimonies. We review custody 

modifications for an abuse of discretion “with a preference for granting 

latitude and deference to our trial judges in family law matters.” We will 

not reweigh the evidence or judge the credibility of witnesses. Rather, we 

will reverse the trial court’s custody determination based only upon a trial 

court’s abuse of discretion that is “clearly against the logic and effect of 

the facts and circumstances or the reasonable inferences drawn 

therefrom.” “[I]t 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.”

In re Paternity of C.S., 964 N.E.2d 879, 883 (Ind. Ct. App. 2012) (citations 

omitted), trans. denied. 

[8] Our preference for granting latitude and deference to our family-law trial judges 

is reinforced by the concern for finality in custody matters. See Baxendale v. 

Raich, 878 N.E.2d 1252, 1257-58 (Ind. 2008). Additionally, we accord this 

deference because trial courts directly interact with the parties and are in a 

superior position “to assess credibility and character through both factual 
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testimony and intuitive discernment.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 

2011). Conversely, appellate courts “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.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).

[9] We note that Father failed to timely file a proper appellee’s brief. When an 

appellee fails to submit a brief on appeal, we apply a less stringent standard of 

review with respect to the showing necessary to establish reversible error. In re 

Paternity of S.C., 966 N.E.2d 143, 148 (Ind. Ct. App. 2012), trans. denied. We 

may reverse if the appellant establishes prima facie error, which is an error at 

first sight, on first appearance, or on the face of it. Id. “Moreover, we will not 

undertake the burden of developing legal arguments on the appellee’s behalf.” 

Id. Nevertheless, even under this less stringent standard, we are obligated to 

correctly apply the law to the facts in the record to determine whether reversal 

is warranted. Tisdale v. Bolick, 978 N.E.2d 30, 34 (Ind. Ct. App. 2012).

[10] The current custody modification stems from Father’s petition to modify child 

custody in response to Mother’s notice of intent to relocate. When a parent 

files a notice of intent to relocate, the nonrelocating parent may object by filing 

a motion to modify custody or to prevent the child’s relocation. Ind. Code §§ 

31-17-2.2-1(b), 31-17-2.2-5(a). The Relocation Statute provides that when a 

party moves to modify custody in response to the proposed relocation of the 

other parent, the trial court must take certain factors into consideration. Jarrell 
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v. Jarrell, 5 N.E.3d 1186, 1190 (Ind. Ct. App. 2014), trans. denied. Specifically, 

in considering a proposed relocation, the trial court must “take into account”

the following factors:

(1) The distance involved in the proposed change of residence.

(2) The hardship and expense involved for the nonrelocating 

individual to exercise parenting time or grandparent visitation.

(3) The feasibility of preserving the relationship between the 

nonrelocating individual and the child through suitable parenting time 

and grandparent visitation arrangements, including consideration of 

the financial circumstances of the parties.

(4) Whether there is an established pattern of conduct by the relocating 

individual, including actions by the relocating individual to either 

promote or thwart a nonrelocating individual’s contact with the child.

(5) The reasons provided by the:

 (A) relocating individual for seeking relocation; and

 (B) nonrelocating parent for opposing the relocation of the child.

(6) Other factors affecting the best interest of the child.

[11] Ind. Code § 31-17-2.2-1(b). The “[o]ther factors affecting the best interest of 

the child” include the statutory factors relevant to an initial custody order or a 

modification of that order, such as the child’s age and sex; the parents’ wishes; 

the child’s wishes; the child’s interaction and interrelationship with parents, 

siblings, and other persons affecting the child’s best interest; and the child’s 

adjustment to home, school, and the community. Ind. Code § 31-17-2-8. In 

contrast to a modification of child custody pursuant to the Modification Statute, 

Indiana Code Section 31-17-2-21, a relocation-based modification need not 
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involve a substantial change to one of the original best interest factors. Jarrell, 5 

N.E.3d at 1190 (citing Baxendale, 878 N.E.2d at 1256-57). 

[12] Accordingly, prior to granting a relocation-based petition to modify custody, 

the trial court is required to consider all the enumerated relocation factors listed 

in Indiana Code Section 31-17-2.2-1(b). In re Marriage of Harpenau, 17 N.E.3d 

342, 347 (Ind. Ct. App. 2014). Mother first claims that the trial court did not 

consider the proper statutory factors in making its ruling but instead considered 

this matter using a non-relocation custody modification framework. We 

acknowledge that while the trial court did reference the non-relocation custody 

modification standard in one of its findings,1 our review of the record and the 

trial court’s numerous other findings indicates that the trial court did in fact 

properly consider evidence relevant to each of the relocation factors. There is 

ample evidence in the record regarding: (1) the distance involved in Mother’s 

proposed change of residence; (2) the hardship and expense involved for Father 

to exercise parenting time; (3) the feasibility of preserving the relationship 

between Father and G.S.; (4) whether there is an established pattern of conduct 

by Mother to promote or thwart Father’s contact with G.S.; (5) the reasons 

each parent seeks or opposes the relocation; and (6) other factors affecting the 

best interest of G.S. While we understand that Mother may disagree with the 

 

1

Specifically, the trial court found “that there has been a substantial and continuing change in one or more 

factor[s] relative to custody and that it would be in [G.S.’s] best interests to be placed in the primary care and 

custody of his father.” Appellant’s App. at 18. We fail to see how applying a more stringent standard 

requiring the finding of an additional element would inure to Mother’s disadvantage.
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weight of the evidence regarding each factor, her argument that the trial court 

wholly failed to consider evidence of the appropriate factors is without merit.

[13] Mother maintains that even if the trial court considered the proper factors, the 

evidence does not support the trial court’s conclusion that relocation was not in

G.S.’s best interests and that modification of custody was warranted. Where, 

as here, the non-relocating parent files a motion to prevent relocation, the 

relocating parent must prove “that the proposed relocation is made in good 

faith and for a legitimate reason.” Ind. Code § 31-17-2.2-5. If the relocating 

parent makes such a showing, “the burden shifts to the nonrelocating parent to 

show that the proposed relocation is not in the best interest of the child.” Id. 

[14] Because the trial court made no specific finding that Mother’s request to 

relocate to Pekin was not made in good faith or for a legitimate reason,2 we will 

assume that Mother met her burden and focus on the trial court’s ultimate 

determination that relocation was not in G.S.’s best interest and that a change 

in custody was warranted. The evidence indicates that Mother’s relocation to 

Pekin would put G.S. almost three full hours away from Father. While Mother 

insists that the move would not impose any additional hardship and expense on 

Father to exercise his allotted parenting time, there is ample evidence in the 

record to support a conclusion that the move would greatly interfere with the 

 

2 While the trial court acknowledged that Mother claimed that an employment opportunity was her reason 

for relocating to Pekin, the trial court clearly implied in its findings that it questioned Mother’s motives. 

Appellant’s App. at 18.
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close relationship between Father and G.S. The trial court’s prior 100-mile

relocation accommodation for Mother’s employment opportunity was an 

attempt to harmonize Mother’s desire to relocate with Father’s ability for 

parental involvement. 

[15] It is crystal clear from this record that Father desires, not simply the minimum 

parenting time, but to be actively involved in G.S.’s school and extracurricular 

activities. There was significant evidence presented to the trial court that 

Mother has disregarded prior court orders and has instead exhibited a 

consistent pattern of attempting to thwart Father’s relationship with G.S. 

Indeed, the trial court specifically found that Mother inappropriately used G.S. 

as leverage by threatening Father that she would allow him no additional 

parenting time with G.S. unless he consented to her relocation to Pekin. 

Appellant’s App. at 18. As noted, the trial court’s prior accommodation was an 

attempt to balance the parties’ competing desires in the best interest of G.S.,

and the record shows that Mother has done much to upset that balance. Based 

upon the evidence, including its extended history in dealing with these parents, 

the trial court concluded that relocation was not in G.S.’s best interest and that 

custody modification was warranted.

[16] “When reviewing a determination regarding the best interests of a child for 

relocation purposes, we ‘view the evidence in the light most favorable to the 

trial court’s decision and defer to the trial court’s weighing of the evidence.’” 

H.H. v. A.A., 3 N.E.3d 30, 37 (Ind. Ct. App. 2014) (quoting T.L. v. J.L., 950 

N.E.2d 779, 788-89 (Ind. Ct. App. 2011)). Considering the evidence favorable 
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to the trial court’s judgment and the reasonable inferences flowing therefrom, 

we cannot say that Mother has established prima facie error here. Mother 

essentially requests that we reweigh the evidence in her favor, a task not within 

our prerogative on appeal. The judgment of the trial court is affirmed.

[17] Affirmed. 

Friedlander, J., and Kirsch, J., concur.