In re the Paternity of: S.A.M. (Child),
M.H., Appellee-Petitioner, M.M., Appellant-Intervenor, S.B., Respondent
from the Madison Circuit Court The Honorable Angela Warner
Sims, Judge Trial Court Cause No. 48C01-1307-JP-184
Attorney for Appellant Cody Cogswell Cogswell &
Attorney for Appellee M.H. David W. Stone IV Stone Law Office
When S.A.M. was born, M.M. ("Father") signed a
paternity affidavit and became S.A.M.'s legal father.
Over time, suspicion arose that another man, B.H., was
S.A.M.'s biological father. However, B.H. died before
paternity tests were conducted. Thereafter, B.H.'s
father, M.H., filed a paternity action to determine whether
S.A.M. was the biological child of B.H. During that
proceeding, Father entered into a mediation agreement
("Mediation Agreement") with M.H. Father later
asked the trial court to declare that Agreement void ab
initio, but the trial court denied his motion.
Father now appeals that denial, raising the following
(1) Whether the trial court erred when it concluded M.H. had
standing as S.A.M.'s next friend to file a petition to
establish B.H.'s paternity of S.A.M.;
(2) Whether the trial court abused its discretion in denying
Father's request to declare void the Mediation Agreement;
(3) Whether the trial court abused its discretion in denying
Father's request for attorney fees.
reverse and remand.
and Procedural History
S.A.M. was born out of wedlock to S.B. ("Mother")
on May 8, 2007. When Mother became pregnant, she was in a
relationship with both Father and B.H. On the day S.A.M. was
born, Father executed a paternity affidavit acknowledging he
was S.A.M.'s biological father. Father is also listed as
S.A.M.'s father on S.A.M.'s birth certificate. Since
S.A.M.'s birth, Father has shared custody of S.A.M. with
Mother and has held himself out as S.A.M.'s father.
S.A.M. refers to Father as "Dad." (Appellant's
App. Vol. II at 106.)
The record indicates Father and B.H. had known each other and
were "best friends" since they were roughly nine
years old. (Id. at 105). However, the record is
sparse with facts regarding whether B.H. had any involvement
in S.A.M.'s life. On January 19, 2011, B.H. passed away.
At the time of B.H.'s passing, paternity had not been
established for B.H. through DNA testing or otherwise.
Nevertheless, at some point, it came to be believed by the
parties that B.H. was S.A.M.'s biological father.
On July 29, 2013, M.H. filed a petition as S.A.M.'s next
friend to establish paternity of S.A.M. In the petition, M.H.
alleged his deceased son, B.H., was the biological father of
S.A.M. Mother was served with a copy of the petition, but
Father was not. On August 28, 2013, M.H. filed a
"Request for Custody or in the Alternative Request for
Grandparent Visitation" of S.A.M. (Id. at 18.)
Father intervened in the action and upon his request, the
court appointed him a public defender. On October 30, 2013,
Father filed an Amended Motion to Dismiss, claiming M.H. was
not a person who may file a paternity action under Indiana
Code section 31-14-4-1. The court denied this motion.
On January 29, 2014, M.H. filed a motion for mediation. On
February 6, 2014, the court ordered the parties to agree on a
mediator and conduct mediation. The parties conducted
mediation on March 19, 2014. Father and M.H. entered into the
Mediation Agreement stipulating, among other things: (1) B.H.
was the biological father of S.A.M.; (2) Father and Mother had
been "actively involved in the care and raising of
[S.A.M.]" since S.A.M.'s birth and Father had been
the "de facto custodian, " (id. at 20), of
S.A.M. since S.A.M.'s birth; (3) Father and Mother shall
have joint legal custody of S.A.M.; (3) Father shall have
primary physical custody of S.A.M.; (4) neither Mother nor
Father would have child support obligations to one another;
(5) M.H. is the biological paternal grandfather of S.A.M.;
and (6) M.H. and his wife, C.H., shall have "Grandparent
visitation" with S.A.M. on certain dates set out in the
agreement. (Id. at 21-23.) The parties also agreed
to a "mutual restraining order, " (id. at
23), requiring, among other things:
[M.H.] shall not disclose, discuss, or communicate in any
manner with [S.A.M.] the biological relationships of the
parties and/or the identity of the biological FATHER without
the expressed written authorization of [Mother] and [Father].
[M.H.] shall take all steps necessary to ensure that third
parties including [C.H.] adhere to and honor this provision.
(Id. at 23-24) (emphasis in original). The trial
court entered an order approving the Mediation Agreement that
The arrangement between Father and M.H. fell apart. Father
learned M.H. told S.A.M., during a visit with him, that B.H.
was his biological father. As a result, Father stopped
honoring the Mediation Agreement's provisions regarding
visitation. M.H. also claimed Father was alienating S.A.M.
from M.H. and C.H.
On August 15, 2014, M.H. filed an "Affidavit for
Citation and Motion to Enforce Grandparent Visitation."
(Id. at 7.) On August 29, 2014, the court held a
hearing on M.H.'s motion and affidavit. Noting Father had
been denying M.H. visitation pursuant to the Mediation
Agreement, the court set out specific dates over the course
of the next year for M.H. to have visitation with S.A.M.
Furthermore, the court noted if Father denied M.H. visitation
with S.A.M., "any and all law Enforcement Authorities
shall be granted authority to assist" in enforcing
visitation. (Appellee's App. Vol. II at 21.)
On July 15, 2016, M.H. filed a second Affidavit for Citation
and Motion to Enforce Grandparent Visitation, alleging
"[Father] and [Mother] had "holy [sic] failed and
refused to allow [M.H.] to exercise Grandparent Visitation
with [S.A.M.]" per the Mediation Agreement.
(Appellant's App. Vol. II at 28.) M.H. requested a
hearing and contemporaneously filed a "Request for
Custody" of S.A.M. (Id. at 26.) M.H. also
requested the court appoint a Guardian Ad Litem
("GAL") for S.A.M. On July 26, 2016, the court
appointed a GAL.
On July 29, 2016, attorney Cody Cogswell entered his
appearance in this cause on behalf of Father. That same day,
Father filed a "Verified Petition to Terminate
Grandparent Visitation, " (id. at 32), alleging
he was "not effectively represented at the time of the
mediation or else he would have been advised to not
enter said 'Mediated Agreement.'" (Id.)
Additionally, Father alleged M.H. lacked standing under the
Grandparent Visitation Statute to bring petition for
visitation. On September 30, 2016, the court held a hearing.
The court noted it would take Father's petition under
advisement, ordered the parties to submit briefing on the
issue, and ordered the GAL to complete her report and
A series of briefings, hearings, and continuances ensued
between October 2016 and February 2017. On February 20, 2017,
Father and Mother jointly filed an "Agreed Entry
Establishing Paternity" in Father,  (id. at
63), and Mother filed an "Affidavit of [S.B.]"
attesting Father "ha[d] been a wonderful Father to
[S.A.M.][, ] and "it was [her] opinion that [M.H.] and
[C.H.] ha[d] detrimentally injured [S.A.M.] mentally and
emotionally by stating that [S.A.M.]'s Father was dead
and that [Father] was not his Father." (Id. at
66-67.) On March 23, 2017, Father filed a "Petition to
Dismiss Grandparent Visitation, to Establish Paternity,
Motion for Order on the Pleadings, and Motion for Attorney
Fees." (Id. at 85.) Attached to the petition
was a copy of the paternity affidavit signed by Mother and
Father the day S.A.M. was born at Community Hospital in
On March 29, 2017, the GAL filed her report. The GAL noted it
was "a very difficult case" for her. (Id.
at 113.) The GAL made the following recommendations:
1) It is my recommendation that custody be continued with
[Father]. If this Court should decide to modify custody to
[M.H.] and [C.H.] then visitation should be put in place
between [S.A.M.] and [Father]. It will also be important to
allow [S.A.M.] to visit with his sibling, [M.X.M.]
2) [M.H.] should be entitled to visitation and make up time
should be afforded to him.
3) Mother should be ordered to have visitation as well.
4) That [S.A.M.] undergo a full mental health evaluation, and
that [Father] follow all recommendations. [Father] provide
[sic] this Court a copy of the mental health evaluation
within 60 days of the date of the order.
5) The family engage in family counseling.
6) Through the help of a therapist, [S.A.M.] should be
informed about his ...