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Date: 02-21-2023

Case Style:

Susan Lipscomb v. Jason Lipscomb

Case Number: 22A-DR-1750

Judge: Riley

Court: Court of Appeals of Indiana on appeal from the Circuit Court, Tippecanoe County

Plaintiff's Attorney:

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Description: Lafayette, Indiana family law lawyers represented Plaintiff and defendant in a child custody dispute.

[¶4] Mother and Father (collectively, Parents) are the parents of G.L., born on September 17, 2007, and S.L., born on May 20, 2011 (collectively, Children). The parties' marriage was dissolved on July 17, 2015, and sole legal and physical custody was awarded to Mother. On December 12, 2017, the trial court entered an agreed order which provided that the parties would share joint legal custody of Children.

[¶5] Parents' exercise of joint legal custody was rife with conflict. Mother and Father both filed multiple motions to modify parenting time and to have the other held in contempt, and the trial court was called upon to resolve disputes regarding decisions as to passports for Children, extracurricular activities, parenting time, and emergency medical care. One area of agreement for Parents was the appointment of a Guardian ad Litem (GAL) for Children, which occurred on December 3, 2019. Late in 2019, and without consulting Father, Mother had G.L. admitted to Changes, a mental health facility, based on allegations-unsubstantiated by the Department of Child Services (DCS)- that Father had abused G.L. Changes was incorrectly informed that Mother had sole legal custody, and, as a result, Father was prevented from communicating with Changes about G.L.'s care.

[¶6] On March 3, 2021, the trial court entered a Parallel Parenting Plan Order identifying Mother and Father as "high conflict parents, as defined in the Indiana Parenting Time Guidelines[,]" and setting forth specific orders on virtually every aspect of Parents' care of Children, including directives on responsibilities and decision-making, education, healthcare, and dispute resolution. (Appellant's App. Vol. II, p. 59). The trial court directed Parents to communicate with each other by writing in a book that would travel with Children rather than through in-person contact, calls, or texts so that contact between Mother and Father would be minimal. In an April 30, 2021, order holding Mother in contempt for interfering in Father's parenting time, the trial court found that Parents had violated the court's orders by continuing to harass each other, had created unnecessary conflict, and had failed to be the "problem solvers" Children needed. (Appellant's App. Vol. II, p. 70). The trial court urged Parents to do better. The trial court stayed the execution of its contempt sanction to allow Mother to purge the contempt by strictly complying with the Parallel Parenting Plan.

[¶7] After G.L.'s care at Changes was downgraded from full-time to part-time, Mother sought to have G.L. admitted to another mental health facility, again without consulting with Father. G.L. was later discharged from Changes. In March 2020, without consulting Father, Mother had G.L. admitted to Options, a mental health facility, based on more unsubstantiated allegations that Father had abused G.L. Based on Mother's instructions, Options would not communicate with Father about G.L.'s care, and Father was forced to have his counsel intervene in order to prove that he had joint legal custody of G.L. and could receive information about her. G.L. subsequently left Options. Without consulting Father and based upon the unsubstantiated allegations that Father had abused G.L., Mother had G.L. admitted into Bloomington Meadows, a mental health facility, where Father was again not permitted to communicate with G.L.

[¶8] On October 5, 2021, Father filed an emergency petition requesting that he exercise sole legal custody of Children, alleging that Mother had violated the Parallel Parenting Plan. On April 28, 2022, the trial court held an evidentiary hearing on Father's emergency custody petition at which, in addition to evidence consistent with the aforementioned facts, the following evidence was admitted. Without any medical basis and without consulting Father, Mother had decided that G.L. had a blood pressure issue and should carry a medical-grade blood pressure cuff with her, a decision that caused G.L. anxiety. Based on a referral for an evaluation for eating issues, Mother had also attempted to
have G.L. admitted into treatment for an eating disorder, after which G.L. was found not to have an eating disorder.

[¶9] Therapist Kristine Ping (Ping), who had treated G.L. from January 2021 to December 2021, testified that G.L. never disclosed any abuse by Father and that Father had listened to suggestions on how to better communicate with G.L. Ping recounted that, after she had given notice to Parents that she was no longer able to work with G.L., Father had immediately agreed with Ping's suggestion of a highly-regarded therapist to replace her. However, Mother had initially rejected Ping's suggestion and insisted on a replacement therapist who was found not to be qualified to counsel G.L. The result was that, although Mother ultimately agreed to Ping's suggested replacement, G.L., who had been displaying self-harm behaviors, went without therapy for three and one-half months. According to Ping, Parents' communication style put G.L. "right in the middle" and caused G.L. anxiety. (Tr. Vol. II, p. 29). Ping thought that G.L. had done the best when Parents were following the Parallel Parenting Plan that restricted their contact, but that if only one parent were to have legal custody, it should be Father, as he listened to G.L.'s professional healthcare providers and did not subject G.L. to unnecessary assessments and treatments.

[¶10] GAL also testified at the April 28, 2022, evidentiary hearing. Although GAL did not agree with Ping that Father should have sole legal custody, she testified that there was conflict between Parents on G.L.'s medical and mental health issues and that Mother had a tendency to create or exaggerate medical issues for G.L. GAL acknowledged that, while Father had moved on from the divorce, Mother had not. Regarding Parents' communication on G.L.'s medical care, GAL testified that

they're just on the wrong page, instead of both of them saying ok here's what we perceive to be the problem, let's talk to the doctor about it together and let's come up with a plan. One makes one decision. One makes the other decision and I gave you six or seven different examples of the medical related things that have come up that were somewhat of concern to me . . . I think it's more of a power struggle th[a]n anything. Each of them wants to be right, wants to have their way.

(Tr. Vol. II, p. 59).

[¶11] Father testified that he had been reported to DCS seven times and had been investigated twelve times by law enforcement for abusing G.L., but that none of the allegations had been substantiated and no charges had been filed against him. Father believed that G.L.'s placement in multiple mental health facilities based on the false abuse allegations had been detrimental to her and that she had learned some of her self-harm behaviors from the other patients who had actually been abused. Father testified that G.L. should receive treatment based on her symptoms and that, if he received sole legal custody, he would act reasonably and take Mother's opinion into consideration.

[¶12] On June 24, 2022, the trial court issued its order, granting sole legal custody of Children to Father. The trial court cited the statutes applicable to legal custody modifications and summarized the parties' conduct since the entry of their December 2017 agreement to share joint legal custody. The trial court found that joint legal custody was no longer in Children's best interests, which necessitated an award of sole legal custody to one parent. The trial court observed that Mother and Father both had the capability to be good parents but that they had both acted unreasonably at times, and it denied what it considered to be Parents' "request to award legal custody based on which parent has been right or wrong more often." (Appellant's App. Vol. II, p. 87). Rather, the trial court chose to focus "on the willingness of each parent to include the other when making major decisions." (Appellant's App. Vol. II, p. 87). Emphasizing the continuing need for Parents to communicate on major decisions even when one parent has sole legal custody, the trial court stated that "Father is being trusted with this important responsibility because the [c]ourt believes he will include Mother and not alienate her, particularly since he understands the impact of being excluded." (Appellant's App. Vol. II, p. 88). The trial court emphasized that Mother was still to be listed as an emergency contact and have access to Children's educators and healthcare providers, Mother still had the ability to make daily decisions about Children when they were in her care, and that its order granting Father sole legal custody "merely addresses Father's authority to act on major decisions involving [Children], if there is a genuine dispute after meaningful consultation with Mother." (Appellant's App. Vol. II, p. 88) (emphasis in the original).

[¶13] Mother now appeals. Additional facts will be provided as necessary.

Outcome: Based on the foregoing, we conclude that the trial court's legal custody modification order is not clearly erroneous.

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