David, J.
When parents fight each other, it is often the children who suffer. When parents litigate against each other, however, the laws and legal system have explicit mechanisms and considerations aimed specifically at protecting the children caught in the middle.
Here, those mechanisms and considerations were ignored and a father was summarily ordered to give up custody of the two children who had been living in his care for over five years. Under the facts and circumstances of this case, we find that this summary resolution, without an evidentiary hearing where witnesses would be sworn and testimony heard, and without the consent of the parties and their counsel, was an abuse of the trial court’s discretion, and we therefore remand for the proper proceedings.
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…No mention is made of whether this modification is in the best interests of B.W. and A.W., nor is there any mention of a substantial change in any of the factors enumerated in Indiana Code § 31-17-2-8. And whether such explicit findings are required or not—and without reducing the importance of the statutory considerations to just talismanic magic words in a trial court order—considering the proceedings leading up to the order, we cannot even infer support for such findings.
None of the witnesses at the March 19 hearing were sworn or cross-examined; none of the documents introduced—if there were any—were admitted through any foundation or examination of reliability. No courtroom formalities (and few civilities) seem to have been observed at all. Parties, attorneys, counselors, and the judge talked freely, interrupted, and questioned each other without any semblance of order or procedure. [Footnote omitted.] The trial court made reference to looking at “the whole picture” in making its decision, (Tr. at 105), but provided no insight into what was contained in that picture before simply announcing that it planned to grant Myers’s motion to modify custody. We know that the trial court contacted the family counselors directly, but none of what was learned during those conversations is reflected in the record. And nothing in the transcript of the hearing relates to any of the factors enumerated in Section 31-17-2-8, so we cannot safely assume that they were considered.
Myers argues that Wilson effectively waived any right to protest this process by signing the release authorizing the court to directly contact the counselors, not insisting that the witnesses be sworn, and not filing a motion requesting specific findings of fact and law. (Appellee’s Br. at 8–10.) But we must be mindful that even if Wilson—and Myers—waived their right to confrontation and formal cross-examination of witnesses, and consented to an unorthodox and summary procedure, the interests of the two critical individuals in the case—A.W. and B.W.—were not separately represented at the hearing.[Footnote omitted.] So even if the transcript did not clearly reflect Wilson requesting an evidentiary hearing and a second in-camera interview—which he did—we would be loathe to use that “waiver” as a cure-all to remediate a process defective in protecting the two individuals most at-risk in this venture.
In short, what we are now faced with on appeal is an order directing one parent to hand over two children to another parent with no mention or hint that doing so is in accordance with the Indiana Code. And the only support for this order is the transcript of what seems to be little more than an unorganized shouting match labeled as an “evidentiary hearing.” To issue such an order was therefore an abuse of discretion.
Tempers clearly ran hot for all involved in this case, as can easily happen in family law cases with disputed custody concerns. {Footnote omitted.] And while summary proceedings—when properly agreed to—can be beneficial in deciding matters of custody and parenting time to minimize the negative impact on the children, such summary proceedings may be less appropriate where the parties are vigorously contesting every facet of the process and appear incapable of approaching these decisions in a civil or cooperative manner. In such cases, we encourage trial courts to utilize the formal procedures embodied in the Indiana Trial Rules to maintain a level of control and decorum that keeps the litigation process from turning into a mud-slinging argument and preserves the rights of all involved.
Conclusion
We remand this case for a proper evidentiary hearing and inquiry into in-camera interviews to address Myers’s motion for modification of custody. At the same time, however, we are aware that A.W. and B.W. have already been pulled from the school and community they were in when living with Wilson, and are now in school in Michigan and living with Myers. Without condoning this change, or expressing any indication that we believe Myers’s motion should (or should not) ultimately be granted, we order this status quo to continue in order to minimize further disruption to A.W. and B.W., until further order of the trial court. [Footnote omitted.]
Therefore, while we vacate the trial court’s order, we cannot easily “reverse” what the order has already done. Simply put, the current living arrangement was not properly established, but at this point it is what it is and it is our obligation, in the best interests of the children, not to exacerbate the problem or to encourage the practice followed here.
Dickson, C.J., Rucker, Massa, and Rush, J.J., concur.