concurring in result opinion.
I fully concur with the majority’s decision to reverse the decision of the trial court and remand for a hearing on the issues of custody and visitation. However, I write separately to emphasize that, when a trial court refuses to follow an agreement of the parties, there must be evidence in the record to support the trial court’s decision.
When determining the custody and visitation rights of the parties, the best interests of the child are paramount. Matter of Paternity of Joe (1985), Ind.App., 486 N.E.2d 1052, 1055. I agree with the majority that a trial court is not bound by a stipulation made by the parties if it is not in the best interests of the child and that it is the duty of the trial court to determine what is in the best interests of the child. Stevenson v. Stevenson (1977), 173 Ind.App. 495, 503, 364 N.E.2d 161, 166. The majority states that a trial court must have a “clear basis” for finding an agreement to be contrary to the best interests of the child. I would go a step further and require the trial court to find that the preponderance of the evidence supports a refusal to accept the parties’ agreement as contrary to the best interests of the child. Before a trial court may reject an agreement by the parties concerning custody and visitation, there must be competent evidence before the court to support its decision to deviate from the agreement. In the instant case, there was no competent evidence before the court that the agreement should not have been followed. The trial court based its decision to disregard the Keens’ agreement on the Guardian Ad Litem’s report, which was improperly before the court as evidence. I would remand to the trial court for a hearing giving the parties the opportunity to respond to the Guardian Ad Litem report. This further evidence may very well support the trial court’s decision to disregard the agreement.