In Re the Paternity of: G.G.B.W. a Minor Child,
S.W., Appellee-Respondent. J.B., Appellant-Petitioner,
from the Marion Circuit Court, The Honorable Sheryl Lynch,
Judge, Trial Court Cause No. 49C01-1101-JP-3803
Attorneys for Appellant John R. Maley Leah L. Seigel Barnes
& Thornburg, LLP Indianapolis, Indiana.
Attorneys for Appellee Darryn L. Duchon Indianapolis, Indiana
Monty K. Woolsey Andrew R. Bloch Cross, Pennamped, Woolsey
& Glazier, P.C. Indianapolis, Indiana.
J.B. ("Father") and S.W. ("Mother") are
the parents of one daughter, G.G.B.W. ("Child"). In
2015, Father petitioned to modify legal custody of Child, and
subsequently filed a contempt petition and motion for rule to
show cause in which Father alleged that Mother was in
violation of a paternity decree. The trial court denied
Father's petitions and motion, and ordered Father to pay
a portion of Mother's attorney fees. Father now appeals.
We affirm in part, reverse in part, and remand.
Father presents the following restated issues:
I. Whether the trial court articulated an erroneous
interpretation of the Decree and thereby abused its
discretion in failing to find Mother in contempt;
II. Whether the trial court abused its discretion in denying
Father's petition to modify legal custody; and
III. Whether the trial court abused its discretion in
ordering Father to pay a portion of Mother's attorney
and Procedural History
Father and Mother had a brief relationship while married to
other spouses, and Child was born in 2007. Mother remained
married and Father subsequently remarried. In 2011, Father
and Mother entered an Agreed Decree of Paternity concerning
Child (the "Decree") that the trial court approved
and incorporated into an order. The Decree contains the
following provision relating to legal custody: "The
parties shall share joint legal custody of [Child] . . .
which shall be defined as follows: Mother must seek
Father's input prior to Mother making any major medical,
religious, or educational decisions for [Child]."
Appellant's App. Vol. II at 47-48. The Decree also
includes the following provision relating to vaccinations:
"If the child attends a school that requires
vaccinations for enrollment, and the child will be denied
enrollment unless she receives the vaccinations, then the
child will be given the required vaccinations for
enrollment." Appellant's App. Vol. II at 51.
Child was not vaccinated following her birth. At the time of
the Decree, Child attended a Montessori school that did not
require vaccinations. The following year, upon Father's
request, Child was to attend kindergarten at a public school.
The school required that its students be vaccinated but,
pursuant to Indiana Code section 20-34-3-2, the school
allowed an unvaccinated student to attend if a parent
executed a form claiming a religious objection to
immunization. Mother sought Father's consent to sign the
form, but Father did not consent. Mother then signed the
form, and Child began attending the school unvaccinated. In
subsequent years, Mother submitted the form without
consulting Father, and Child has continued to attend the
In early 2015, when Father learned that Child would be
traveling on an extended European Disney Cruise, Father
expressed concern to Mother about Child remaining
unvaccinated. On May 18, 2015, Father petitioned to modify
legal custody of Child as to medical decisions only, alleging
a substantial change in circumstances in that Child had not
received any vaccinations since birth. The next month, Father
learned that his wife was pregnant, and on July 29, 2015,
Father filed a contempt petition alleging that Mother was
violating the Decree because she did not "vaccinat[e]
[Child] pursuant to" the Decree and because she
"falsely advised the school of a religious affiliation
to avoid vaccinating the child." Appellant's App.
Vol. II at 57.
During the pendency of Father's motion and contempt
petition, Father and his wife became the parents of twins, a
boy and a girl. The daughter was born healthy and could
receive vaccinations on schedule, but the son could not be
vaccinated due to a serious heart condition. Father was
advised by a doctor that it was unsafe for the newborns to be
around anyone unvaccinated, including Child. Acting on that
advice, Father stopped exercising overnight parenting time
and would not permit Child to physically meet the infants.
On March 3, 2016, Father filed a motion for rule to show
cause. In the motion, Father asserted generally the same
grounds for contempt contained in his petition and alleged
that Child's health was at risk due to being
unvaccinated. Father also alleged that he was unable to
exercise overnight parenting time with Child because Child
was unvaccinated and posed a risk to his infants.
The trial court held a hearing in May and June of 2016. At
the hearing, Father called his son's doctor who testified
in favor of vaccinations, and he called an Episcopalian
priest who testified that the Episcopalian faith-Mother's
faith- has no tenet against vaccinations. Mother called two
expert witnesses who testified about the risks of vaccination
and the ineffectiveness of vaccines.
On October 6, 2016, the trial court denied Father's
petition to modify custody, leaving the Decree unchanged. The
trial court also denied Father's contempt petition and
related motion for rule to show cause, reasoning that Mother
complied with the Decree when she claimed a religious
objection to vaccinating Child. ...