Tavitas, J.
Case Summary
Maria Arriaga appeals the trial court’s order regarding a petition for modification of custody filed by Samuel Salazar (“Father”). We reverse and remand.
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Arriaga argues that the trial court erred by denying her motion to intervene….
Arriaga’s motion to intervene specifically alleged that Arriaga was the Child’s de facto custodian. The trial court, however, found that Arriaga did not qualify as a de facto custodian. On appeal, Arriaga argues that the trial court erred by denying her motion to intervene and by granting custody to Father. [Footnote omitted.] We conclude that the trial court erred when it found Arriaga was not a de facto custodian and that, as a result, Arriaga was harmed when the trial court failed to follow the relevant statutory provisions in ruling on Father’s petition to modify custody.
In denying Arriaga’s motions, the trial court first determined that Arriaga was not a de facto custodian. Indiana Code Section 31-9-2-35.5 defines “de facto custodian”….
The following are the relevant dates in this action. The Child was born on December 22, 2010. The State brought a Title IV-D proceeding regarding support for the Child in February 2011. In April 2011, the trial court entered an order, in part, confirming Father’s paternity of the Child, granting Mother custody of the Child, and ordering Father to pay child support. In approximately June 2011, when the Child was “six months old,” the Child began living with Arriaga. Tr. Vol. II p. 61. The Child was still living with Arriaga when Father filed a petition to modify custody in March 2018.
In determining the exclusion for the “period after a child custody proceeding has been commenced” under Indiana Code Section 31-9-2-35.5, the trial court found that “this proceeding ‘commenced’ with respect to [the Child] on February 9, 2011 . . . .” Appellant’s App. Vol. II p. 10. The trial court then found that, given the Child’s December 2010 birthdate, “any period of time another person cared for her cannot have reached six months before a child custody proceeding commenced.” Id. at 11 (emphasis added).
The trial court’s finding implies that the six-month required minimum period for a de facto custodian determination, which applies here, can run only before but not after a custody determination. The trial court’s finding does not account for the fact that, although the Title IV-D proceeding was commenced in February 2011, it was concluded in April 2011, and Arriaga has been caring for the Child since June 2011. The relevant time period for the de facto custodian determination, however, did not start until after the Title IV-D child custody proceeding ended and concluded when Father filed his petition to modify custody in March 2018.
The trial court’s finding would mean that, after a child custody proceeding has been commenced, the required minimum period for a de facto custodian determination is forever tolled and cannot be restarted. Under that interpretation, once a child is subject to an initial custody determination, the child could never have a de facto custodian. We hold that the six-month required minimum period under Indiana Code Section 31-9-2-35.5 can be established either before a child custody proceeding has been commenced or after such an initial proceeding has been concluded. Thus, the trial court misinterpreted the statute when it determined that Arriaga is not a de facto custodian of the Child.
Our Courts have not yet had an opportunity to interpret the provision in the statute that excludes from the period required to establish de facto custody “[a]ny period after a child custody proceeding has been commenced,” so we are presented with an issue of first impression…
Again, the statute provides in relevant part that a person is a de facto custodian over a child who is under the age of three if the child resides with the person for a period of at least six months, excluding any period of time “after a child custody proceeding has been commenced[.]” I.C. § 31-9-2-35.5. Here, the undisputed evidence shows that the Child has lived with Arriaga since June 2011, when the Child was six months old. The record shows that, while the State filed a Title IV-D petition for child support in February 2011, that petition was granted in April 2011, and the trial court granted custody of the Child to Mother. Thus, the “child custody proceeding” had concluded, and custody was vested in Mother, prior to June 2011, when Mother turned over care and custody of the Child to Arriaga. [Footnote omitted.]
Considering what the statute says and does not say, the word “commenced” is significant. We conclude that the time period relevant to establishing a de facto custodianship excludes any period of time after a child custody proceeding has been commenced and while it is pending. After a child custody proceeding has been commenced and has concluded, however, the calculation of the time relevant to a de facto custodian determination is not tolled. Indeed, to interpret the statute otherwise would lead to an absurd result. Here, because the Child began living with Arriaga in June 2011, after the Title IV-D proceeding had concluded and the trial court had granted custody of the Child to Mother, the entire time the Child has lived with Arriaga counts toward the statutory time requirement. The Child lived with Arriaga from the age of six months, and she was eight years old when Father filed his petition for modification of custody, which is more than enough time to prove Arriaga’s de facto custodian status.
Accordingly, we hold that the trial court erred by determining that Arriaga was not a de facto custodian. Indiana Code Section 31-14-13-2.5(c) provides: “If a court determines that a child is in the custody of a de facto custodian, the court shall make the de facto custodian a party to the proceeding.” [Footnote omitted.] Given Arriaga’s status as a de facto custodian, the trial court abused its discretion by denying Arriaga’s motion to intervene. [Footnote omitted.]
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Because the trial court found that Arriaga was not a de facto custodian, the trial court failed to consider the factors of Indiana Code Section 31-14-13-2.5 and the relevant decisions of our Supreme Court on this issue. This failure prejudiced Arriaga’s substantial rights and was not harmless. We reverse and remand for the trial court to reconsider its custody modification determination and apply the relevant statutes and cases pertaining to de facto custodians. [Footnote omitted.]
Conclusion
As a result of the trial court’s erroneous finding that Arriaga was not a de facto custodian, the trial court abused its discretion by denying Arriaga’s motion to intervene. This error also led to the trial court’s failure to apply the proper statutes and case authority regarding de facto custodians in the custody modification proceeding. We reverse the trial court’s denial of Arriaga’s motion to intervene and determination that Arriaga was not a de facto custodian. We remand for the trial court to reconsider its custody modification determination and apply the relevant statutes and cases pertaining to de facto custodians.
Reversed and remanded.
Najam, J., concurs. Vaidik, J., concurs in part, dissents in part.
Vaidik, Judge, concurring in part, dissenting in part.
I respectfully concur in part and dissent in part. I agree with the majority that the trial court did not err by denying Arriaga’s motion to reopen the case. I would then address—and reject—Arriaga’s only other substantive argument: that Samuel Salazar is not Child’s biological father and that the trial court therefore abused its discretion by placing Child in his custody. See Ind. Code § 16-37-2-2.1(p) (an executed paternity affidavit conclusively establishes the man as the legal father of a child without any further proceedings by a court). Instead, the majority reverses the trial court’s custody decision, which is not clearly erroneous, based on arguments that are nowhere to be found in Arriaga’s brief, namely, that the trial court should have (1) found Arriaga to be a de facto custodian and, accordingly, (2) analyzed custody under Indiana Code section 31-14-13-2.5. That is where I must dissent.
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