Barnes, J.
Case Summary
Shelly Bailey (“Mother”) appeals the trial court’s modification of physical custody of her children in favor of Lance Bailey (“Father”). We reverse and remand.
Issue
The sole issue we address is whether the trial court erred in modifying custody when neither party requested a modification of custody.
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Father seems to contend Mother had some notice that the trial court was considering modifying custody and that she consented to such consideration. [Footnote omitted.] He notes that Mother agreed at the conclusion of the hearing that the trial court could order a Parallel Parenting Order if it so desired. Father seems to be confusing a Parallel Parenting Order with a joint physical custody order or 50/50 visitation schedule. They are not the same. Effective March 2013, a provision allowing for the creation of Parallel Parenting Orders was added to the Parenting Time Guidelines. Such orders are intended to minimize the contact between “high conflict parents . . . at least until the parent conflict is under control.” [Footnote omitted.] Ind. Parenting Time Guidelines, § IV, Scope. To accomplish this goal, Parallel Parenting Orders provide that “each parent makes day-to-day decisions about the child while the child is with the parent” and limits communications between the parents to written or emergency contact only; such orders also are subject to mandatory review every 180 days. Id. Most importantly for purposes of this case, nothing in the new Parallel Parenting provision demonstrates any intent that it should affect the amount of parenting time awarded, except for possible elimination of mid week parenting time, makeup parenting time, and opportunities for additional parenting time that appear elsewhere in the Parenting Time Guidelines. See id. at § IV(1). In fact, there is a “model” Parallel Parenting Order appended to this provision that contains a section entitled “REGULAR PARENTING TIME” and lists either the mother or father as having “sole custody of the child” with the other parent having scheduled visitation on weekends and during the summer. Id. at § IV, Appendix.
In sum, Mother’s agreement that the trial court could enter a Parallel Parenting Order was in no way a concession that the trial court could modify the children’s physical custody to joint custody. Neither Mother nor Father ever filed a petition requesting a change in custody. Furthermore, neither party gave any hint during the evidentiary hearing that he or she desired a change in custody. Father, in particular, only requested that he be granted makeup visitation days and never mentioned wanting joint physical custody of the children. The parties never discussed or argued whether there had been a change of circumstances related to any of the statutory factors warranting a custody modification or whether there was a change in the children’s best interests. Mother had no warning that she had to make an argument that such circumstances were lacking or that a change was not in the children’s best interests or that she had to present evidence on those issues. The trial court effectively relieved Father of his burden of proving that a modification of custody was warranted. Also, the trial court’s modification order, while containing a number of detailed sua sponte factual findings, makes no mention of whether there had been a substantial change of circumstances or whether modification was in the children’s best interests, as required to order a custody modification. Even if such findings are not expressly required, their absence is most troubling, given the procedural irregularity of the trial court having modified custody without anyone having requested it. See Wilson, 997 N.E.2d at 341. We therefore conclude the trial court abused its discretion in sua sponte modifying physical custody of the children. See id. at 342; see also O’Campo v. O’Campo, 597 N.E.2d 1314, 1316 (Ind. Ct. App. 1992) (holding trial court erred in sua sponte modifying child custody obligation where issue was raised neither expressly in writing or orally, or impliedly during evidentiary hearing).
Conclusion
We reverse the trial court’s modification of physical custody of the children and remand for the trial court to make all necessary corrections to its May 23, 2013 order to reflect this reversal, including its recalculation of Father’s child support obligation. The Parallel Parenting provision of that order may remain in effect, on condition that it is revised to reflect Mother’s primary physical custody of the children and Father’s scheduled visitation.
Reversed and remanded.
CRONE, J., concurs.
BAKER, J., dissents with separate opinion.
BAKER, Judge, dissenting.
I respectfully dissent. As acknowledged by the majority, “[c]ounsel for Mother agreed that the trial court had [the] power” to enter a parallel parenting time order based on the pleadings…..
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Here, I believe that the trial court strived for both the children’s best interests and to prevent further destructive behavior. For these reasons, I believe the trial court’s order is correct and, therefore, dissent.