Tavitas, J.
Case Summary
Genesis Palma (“Mother”) appeals the trial court’s grant of a modification of custody regarding E.K. (“Child”), which was filed by Zachary Keown (“Father”). The parties initially agreed to joint legal and physical custody; however, the trial court later granted Father’s petition for emergency temporary change of custody and ordered that Mother have supervised parenting time with the Child. Thirty-two months later, the trial court began final hearings regarding the Child’s custody. The trial court granted Father’s petition for change of custody and granted Mother unsupervised parenting time.
Mother argues that her due process rights were violated during these proceedings due to procedures used to grant the temporary change of custody, delays in conducting the final hearings, and the denial of guardian ad litem (“GAL”) discovery. Mother also argues that the trial court erred by granting Father’s petition to modify custody. As for the due process argument, we conclude that Mother has failed to demonstrate a due process violation regarding the emergency temporary change of custody. We, however, conclude that Mother’s due process rights were violated by the extraordinary delays in conducting the final custody hearings and by the trial court’s denial of Mother’s discovery requests to the GAL. Moreover, regarding the petition to modify custody, Mother has demonstrated that the trial court failed to find a proper substantial change in circumstances and erred by granting the petition. Accordingly, we reverse and remand.
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Next, Mother argues that the thirty-two month delay between the emergency custody modification in March 2020 and the start of final custody hearings in December 2022 violated her due process rights. Final hearings on Father’s petition for modification of custody were held over five days in December 2022, January 2023, and February 2023; thirty-two months elapsed between the March 2020 order and the start of those final hearings. The trial court’s order was then issued in May 2023; thus, Mother was required to have supervised parenting time from March 2020 to May 2023—more than thirty-seven months.
Indiana Code Section 31-17-2-6 provides that “[c]ustody proceedings must receive priority in being set for hearing.” Thus, the trial court had a duty and responsibility to timely set custody matters for hearing. This is especially true where, as here, the trial court granted an emergency, temporary change of custody.
We addressed a similar issue in Wilcox v. Wilcox, 635 N.E.2d 1131 (Ind. Ct. App. 1994)…
We noted the adage that “justice delayed is justice denied” and emphasized that “[a] prompt hearing is especially essential in a custody case where the parties are dueling for a child’s affections and the longer a delay, the more chance one party has to influence the child.”…
Father argues that Wilcox is distinguishable because the temporary change in Wilcox occurred after an ex parte order while, here, Mother was granted two hearings and a GAL investigation before the temporary custody modification. Mother was also given the opportunity to present evidence and cross-examine the GAL before the restriction of her parenting time was implemented. We, however, have significant concerns over the thirty-seven-month time period between the temporary custody order and the permanent custody order here. The extreme number of delays and limited, supervised contact between Mother and the Child allowed the Child to become firmly entrenched in Father’s care, which is evidenced by the trial court’s final custody order. The delay here clearly prejudiced Mother.
Although both parties’ behaviors contributed to the delays, the trial court was under a statutory duty to expedite the matter. [Footnote omitted.] Even when Mother filed motions to set a final hearing date, the trial court denied those motions, and the case became stale. The trial court then left it to the parties to move the case forward, but the parties are not under the same statutory duty as the trial court. Under these circumstances, we conclude that the extraordinary delay here prejudiced Mother and violated her due process rights.
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Conclusion
Mother fails to demonstrate that her due process rights were violated by the emergency temporary change of custody. We, however, conclude that Mother’s due process rights were violated by the extraordinary delays in conducting the final custody hearings and the trial court’s denial of Mother’s discovery requests to the guardian ad litem. Moreover, Mother has demonstrated that the trial court failed to identify a valid substantial change in one of the Section 2 factors.
The trial court erred by granting Father’s petition for modification of custody, and we must reverse and remand. Because we reverse the trial court’s final determination, we return the parties to their joint legal and physical custody agreement, which was in effect before the temporary emergency custody order was entered.
Reversed and remanded.
Bradford, J., concurs. Crone, J., dissents with separate opinion.
Crone, Judge, dissenting.
I agree with the majority that Mother’s challenge to the March 2020 emergency custody modification order is both moot and waived and that Mother had a right to seek the discovery that she requested from the GAL. But that is where my agreement with the majority ends.
Regarding the interval between the emergency custody modification order and the start of final custody hearings, I find it significant that after the trial court set the final hearing dates in September 2022, Mother agreed to vacate the November hearing date to “allow the parties to continu[e] working toward a resolution.” Appellant’s App. Vol. 2 at 22. If Mother truly believed that time was of the essence, she should not have acquiesced to any postponement. Moreover, far from being prejudiced by the delay, Mother was given an opportunity to get her life in order and establish her fitness for reinstatement of joint custody. Also, I fail to see how Mother was harmed by the trial court’s denial of her discovery requests, given that the GAL testified without using his notes or a summary thereof and Mother was able to fully cross-examine him. [Footnote omitted.]
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