Barnes, J.
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I. Settlement Agreement as to Custody
Father first argues that the trial court erred in refusing to enforce the parties’ mediated settlement agreement providing for joint physical and legal custody of M.S., and in permitting Mother to effectively repudiate the agreement on that point by requesting primary physical and sole legal custody of M.S. “To promote the amicable settlements of disputes,” parties in a dissolution action may enter written agreements that include provisions for child support and custody. Ind. Code § 31-15-2-17(a). By statute, trial courts are not required to accept such agreements, and they may enter their own orders regarding dissolution matters, including child support and custody. I.C. § 31-15-2-17(b). Additionally, parties to a written settlement agreement may jointly request that a trial court enter a summary dissolution decree based upon the settlement without holding a final hearing. I.C. § 31-15-2-13. However, the statute provides that a trial court “may” enter such a decree; it is not required to do so upon the parties’ request. Id.
There are a number of cases addressing the extent to which trial courts must accept, and parties may be allowed to repudiate, settlement agreements regarding child custody. In Keen v. Keen, 629 N.E.2d 938 (Ind. Ct. App. 1994), we addressed a situation in which a trial court refused to approve and modified the parties’ settlement agreement regarding child custody and parenting time, based on the opinion of a guardian ad litem (“GAL”). We reversed, based on a technicality related to the GAL, and remanded for the trial court to conduct a custody hearing. In doing so, we rejected the father’s argument that the trial court was bound to accept the parties’ child custody agreement as is, holding that “no agreement between parties that affects the custody of a child is automatically binding upon the trial court.” Keen, 629 N.E.2d at 940. We observed that the wishes of the parents are only one factor out of several for a trial court to consider when making a custody determination. Id. (citing I.C. § 31-1-11.5-21(a)(2) (1994), now codified as I.C. § 31-17-2-8). We also noted that “the best interests of the child are the primary consideration” when child custody or visitation rights are concerned and, therefore, “both custody and visitation conflicts are left to the trial court to resolve.” Id. Acknowledging that a child custody agreement generally should be given “great weight,” in light of parental constitutional rights to raise their children, we noted several instances in which a trial court should not defer to such an agreement as being in the best interests of a child. Id. Such circumstances include when there is evidence that an agreement might endanger a child’s physical health or significantly impair his or her emotional development, or when the agreement is ambiguous, unworkable, and likely to demand further litigation. Id.
In Voigt v. Voigt, 670 N.E.2d 1271 (Ind. 1996), our supreme court addressed the circumstances in which a trial court should be permitted to reject or modify a dissolution settlement agreement; the particular settlement agreement provision at issue in the case involved spousal maintenance. The court held as a general rule that “the power to disapprove a settlement agreement must be exercised with great restraint.” Voigt, 670 N.E.2d at 1277. Furthermore, “[i]n reviewing a settlement agreement, a court should concern itself only with fraud, duress, and other imperfections of consent, . . . or with manifest inequities, particularly those deriving from great disparities in bargaining power.” Id. at 1278. However, the court also pointedly stated, “Of course . . . the same principles and standards cannot apply to child custody and support provisions of proffered settlement agreements. . . . If there is one overriding policy concern in dissolution actions, it is protecting the welfare and interests of children.” Id. at 1278 n.10.
In In re Paternity of K.J.L., 725 N.E.2d 155 (Ind. Ct. App. 2000), a mother in a paternity action repudiated a previous stipulation as to child custody that she had agreed to under oath during a court hearing, prior to the court receiving any evidence regarding custody or the best interests of the child. [Footnote omitted.] The trial court refused to accept the mother’s repudiation and adopted the stipulation as its final custody ruling. Citing Keen and Voigt, among other cases, we held that the trial court erred in not holding a hearing and in adopting the stipulation after the mother had repudiated it. K.J.L., 725 N.E.2d at 159. We stated that although “the courts of this state have always encouraged parties to enter into agreements settling their own affairs, agreements pertaining to the support and custody of children are of a different character and will not be deemed effective unless, and until, they are approved by the court.” Id.
In Beaman v. Beaman, 844 N.E.2d 525 (Ind. Ct. App. 2006), a trial court accepted a proffered settlement agreement as to child custody, but there was no indication in the record that the trial court had ever considered whether the agreement was in the child’s best interests, even though it had conducted two dissolution-related hearings. Relying on Voigt, Keen, and K.J.L., we stated, “Although courts should give great weight to the wishes of the parents, it is the duty of the trial court to determine if any agreement is in the best interests of the child.” Beaman, 844 N.E.2d at 532. “A trial court cannot ‘rubber-stamp’ such an agreement.” Id. at 533. We noted that on its face, the child custody agreement contained at least one “unorthodox” provision that seemingly had the potential to be unworkable and lead to future litigation. Id. We remanded for the trial court to conduct an “examination” of the custody agreement. Id.
Reno v. Haler, 734 N.E.2d 1095 (Ind. Ct. App. 2000), aff’d on r’hg, 743 N.E.2d 1139 (Ind. Ct. App. 2001), trans. denied, seems to represent a slightly different approach to child custody settlement agreements, one that requires more trial court deference to such agreements. In that case, the parties participated in mediation and reached various agreements, including as to child custody, and both husband and wife signed handwritten notes of the meeting. However, the wife refused to sign the full agreement after it was printed out and presented for her signature. The wife subsequently told the trial court that she had repudiated the agreement, but the trial court rejected her repudiation and approved the mediated settlement in full as the final dissolution decree, including its child custody provision. This court affirmed. First, although the trial court made no express finding that the custody agreement was in the child’s best interests, it did state that the agreement was “fair, reasonable and proper,” which the court held sufficient to establish that the trial court had found the agreement to be in the child’s best interests. Reno, 734 N.E.2d at 1100.
Second, the court concluded that the trial court properly refused to permit the wife to repudiate the mediated settlement. The court distinguished K.J.L. on the basis that K.J.L. concerned a non-mediated oral settlement agreement (although one given under oath during a court hearing), while the case it was deciding concerned a mediated written settlement (although the wife refused to sign the final printed agreement). Id. at 1100-01. Also, the Reno court held that a trial court should uphold a written agreement concerning child custody unless a party is able to establish the existence of “‘some unfairness, unreasonableness, manifest inequity in the terms of the agreement, or that the execution of the agreement was procured through fraud, misrepresentation, coercion, duress, or lack of full disclosure.’” Id. at 1101 (quoting Gabriel v. Gabriel, 654 N.E.2d 894, 898 (Ind. Ct. App. 1995), trans. denied). Although Gabriel solely concerned a property settlement agreement, the Reno court stated, “We believe the same is applicable to settlement agreements involving child custody and visitation.” Id. Reno’s holding was followed in two other cases from this court. See In re Paternity of K.R.H., 784 N.E.2d 985, 989 (Ind. Ct. App. 2003); Carrasco v. Grubb, 824 N.E.2d 705, 711 (Ind. Ct. App. 2005), trans. denied.
Reno, K.R.H., and Carrasco did not discuss or cite Voigt. Thus, there was no acknowledgment in those cases of our supreme court’s clear statement that while dissolution settlement agreements dealing with property and maintenance issues generally should be upheld unless there is Gabriel-type evidence of fraud, coercion, or manifest inequity, a different standard applies altogether to custody agreements. Namely, the “overriding policy concern” is the best interests of the child or children. Voigt, 670 N.E.2d at 1278 n.10.
It is unclear to us that a parent should be forbidden, before a mediated settlement agreement regarding child custody is approved and made effective by a trial court, from alerting a trial court to his or her concerns about the agreement and whether it is truly in the child’s best interests. If a party is having second thoughts about the propriety of a child custody agreement, we do not see why a trial court should be prohibited from taking such reluctance into consideration when deciding how thoroughly to examine whether the agreement suits the child’s best interests, which is the “overriding” concern in any dissolution where children are involved—a concern that trumps the interest in promoting the settlement of disputes. In the present case, regardless of whether Mother repudiated the settlement agreement, the trial court clearly and properly indicated before repudiation that it was not going to approve the agreement without some explanation as to how the agreement was in M.S.’s best interests. And at the subsequent hearings to address M.S.’s best interests, we do not believe Mother should have been prevented from presenting all relevant evidence on that issue, even if that evidence indicated that the settlement agreement was not in M.S.’s best interests and even if, as the trial court found, there was no evidence of fraud or coercion in the procurement of the settlement agreement. We see nothing improper in the manner in which the trial court proceeded. [Footnote omitted.}
We also note Father argues in part that Mother should not be permitted to repudiate the settlement agreement because he voluntarily gave up his interest in the marital residence “in exchange for exercising joint legal and physical custody of the parties’ child.” Appellant’s Br. p. 27. He further states, “It is not unusual for parties to give up his or her portion of a marital estate in exchange for more parenting time with a child.” Id. We submit that this is precisely one reason why courts must independently evaluate agreements on child custody, to ensure that a child was not used as a bargaining chip by one party, within the often acrimonious atmosphere of a divorce proceeding, to extract more marital property from the other party regardless of whether the resulting child custody arrangement would be in the child’s best interests. Parents should neither be able to “buy” more parenting time, nor have it withheld for being reluctant to give up marital property, without regard to a child’s best interests. As our supreme court very recently stated, “Every child deserves better than to be treated as nothing more than a bargaining chip.” Perkinson v. Perkinson, No. 36S05-1206-DR-371, slip op. p. 8 (Ind. June 25, 2013). We also believe that even if a trial court does not accept the child custody provisions of a settlement agreement, that is no reason for it to reject provisions with respect to property division, contrary to Father’s suggestion. In sum, the trial court did not err in refusing to approve the settlement agreement with respect to child custody without evidence and argument as to whether it was in M.S.’s best interests.
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Conclusion
The trial court did not err in refusing to approve the parties’ settlement agreement regarding child custody without receiving evidence regarding whether the agreement was in M.S.’s best interests, nor did it err in allowing Mother to present evidence and argue that it was not in M.S.’s best interests. We do conclude the trial court abused its discretion in denying Father’s third continuance motion and, therefore, we reverse and remand for a new hearing regarding custody of M.S. We also reverse that part of the dissolution decree ordering Father to pay $5,000 towards Mother’s attorney fees. The dissolution decree’s property division orders, as reflected in the settlement agreement, are affirmed.
Affirmed in part, reversed in part, and remanded.
NAJAM, J., and BAILEY, J., concur.