Fox v. Fox
| Decision Date | 09 August 1984 |
| Docket Number | No. 4-1283,4-1283 |
| Citation | 466 N.E.2d 789 |
| Parties | Loretta S. FOX, Appellant (Respondent Below), v. John D. FOX, Appellee (Petitioner Below). A 400. |
| Court | Indiana Appellate Court |
Ihor N. Boyko, Indianapolis Legal Aid Society, Inc., Indianapolis, for appellant.
Winston T. Hay, Wunder & Hay, Indianapolis, for appellee.
The marriage of John D. and Loretta S. Fox was dissolved on August 23, 1983. Both parties sought custody of their minor child, Melinda. However, in the trial court's order of August 23, it made Melinda a ward of the Marion County Department of Public Welfare. The parties contend that the trial court's action was contrary to law.
This Court's standard of review in custody matters is well settled. The manifest abuse of discretion standard is applicable to cases involving the award of and modification of child custody. It is within the discretion of the trial court to award the custody of children consistent with their best interests. An abuse of discretion that would permit an appellate court to reverse a trial court's determination must be an erroneous conclusion reached by a trial court which is clearly against the logic, facts, and circumstances before the court or reasonable inferences to be drawn therefrom. Deference must be given by the reviewing court to the trial court due to the fact it is in the position to judge the demeanor and credibility of witnesses. Williams v. Trowbridge, (1981) Ind.App., 422 N.E.2d 331.
Indiana recognizes the common-law rule that the natural parents of a minor child are entitled to custody of the child, unless they are unsuitable to be entrusted with the care of the child. Williams, supra. The question of whether the evidence was sufficient to rebut the presumption that it is in the best interests of the children to be placed in the custody of a natural parent is a question of fact for the trial court to determine and not one for the reviewing court. Kissinger v. Shoemaker, (1981) Ind.App., 425 N.E.2d 208.
The evidence in the case at bar was sufficient to support the trial court's determination. Both parties have alleged that the other abused Melinda. Loretta has accused John of sexually abusing the child and John has accused Loretta and her boyfriend of physically abusing the child. Loretta had lived in eight different places within two years, the longest being with her boyfriend at the time of the hearing. She had not been employed. John had a history of recurring unemployment and at the time of the hearing was living in a two-bedroom apartment with his girlfriend and her mother. The report from the Domestic Relations Counseling Bureau found that both parties had personality difficulties which impaired their ability to parent properly and to provide for the emotional needs of the child.
We cannot say that the conclusion reached by the trial court in this case was clearly against the logic, facts, and circumstances before it. There was sufficient evidence to overcome the presumption in favor of the natural parents and to establish unfitness. Due to such a showing it was in the best interest of the child to be placed with a third party.
The parties also contend that the trial court's action was outside its jurisdiction. In a child custody...
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