dissenting.
At the outset, I applaud Judge Barnes's thoughtful analysis of the cases guiding our resolution of the procedural issue before us today. I draw the same lessons from those precedents, and I agree with the majority that a synthesis of the "parental presumption" and "best interests" standards is the proper means of protecting a parent's rights and a child's best interests where the parent seeks to modify the long-term permanent custody of a third party. I also agree with the majority that the Ketners rebutted the parental presumption with evidence that Horan acquiesced to their custody of Z.T.H. and that the trial court's conclusion to the contrary is clearly erroneous. |
I must respectfully disagree, however, with the majority's suggestion that the Ketners were therefore not "in the same position as any custodial parent objecting to a petition to modify custody" and that the appropriate solution is to "remand for a hearing in which Horan has the burden of establishing that the modification of custody is in Z.T.H.'s best interests and that there has been a substantial change in circumstances." Op. at 257. Simply because the trial court believed that Horan did not have the burden of establishing that modification is in Z.T.H.'s best interests and that there has been a substantial change in circumstances does not mean that Horan failed to present sufficient evidence to meet this burden. Indeed, in its ruling on the Ketners'. motion to correct error, the trial court specifically found that Horan had met this burden regardless of the applicable legal standard. Appellants' App. at 20-21.
I believe that sufficient evidence exists to support this finding. Horan moved from Greene County to Zionsville, where he is willing to remain until Z.T.H. finishes high school. Horan has demonstrated an interest in Z.TH.'s medical care and education, obtained stable employment, and initiated a program at the Boys and Girls Club that Z.TH. attends. These examples demonstrate a substantial change in cireum-stances, not merely a change of mind on Horan's part. Also, the trial court found that Horan and Z.T.H. "have a strong and close relationship" and that Z.T.H. wishes to live with Horan, which lends support to its finding that modification of custody is in Z.T.H.'s best interests. Id. at 17.
I do not believe that the trial court failed to place the Ketners "on a level playing field with Horan". in determining the best placement for Z.TH. Id. at 21. More importantly, in view of its numerous detailed findings, I do not believe that the trial court would reach a different result were it to hold another hearing "under the parameters of today's decigion|.]" I4. at 28. Recently, our supreme court reiterated that "appellate courts give considerable deference to the findings of the trial court in family law matters[.]" MacLafferty v. MacLafferty, 829 N.E.2d 988, 940 (Ind.2005). The court explained,
[Tlhis deference is a reflection, first and foremost, that the trial judge is in the best position to judge the facts, to get a feel for the family dynamics, to get a sense of the parents and their relation*260ship with their <children-the kind of qualities that appellate courts would be in a difficult position to assess. Secondly, appeals that change the results below are especially disruptive in the family law setting. And third, the particularly high degree of discretion - afforded trial courts in the family law setting is likely also attributable in part to the "fluid" standards for deciding issues in family law cases that prevailed for many years.
Id. at 940-41 (citations omitted).
I wholeheartedly endorse the majority's "solidification" of standards in this area of family law and believe that it will offer valuable guidance to trial courts in similar situations. Also, I appreciate the majority's concern for giving the parties an opportunity to present evidence in a manner consistent with those standards» It is clear that the trial court found that application of those standards would not have changed the outcome, and I believe we should give due deference to the trial court and affirm its decision in the intérests of stability and finahty Therefore I respectfully dissent.