                                                                            FILED
                                                                        Feb 28 2020, 9:02 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Stephen H. Shroyer                                         Melissa Winkler-York
Miller Waters Martin & Hall                                The Law Office of Melissa
Indianapolis, Indiana                                      Winkler-York, LLC
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Flavia Rasheed,                                            February 28, 2020
Appellant,                                                 Court of Appeals Case No.
                                                           19A-DC-1722
        v.                                                 Appeal from the Marion Superior
                                                           Court
Rocky Rasheed,                                             The Honorable James A. Joven,
Appellee.                                                  Judge
                                                           The Honorable Kimberly D.
                                                           Mattingly, Magistrate
                                                           Trial Court Cause No.
                                                           49D13-1712-DC-46216



Brown, Judge.




Court of Appeals of Indiana | Opinion 19A-DC-1722 | February 28, 2020                           Page 1 of 11
[1]   Flavia Rasheed (“Mother”) claims the trial court erred in awarding joint legal

      custody. We reverse and remand.

                                        Facts and Procedural History

[2]   Mother and Rocky Rasheed (“Father”) were married in November 2011 and

      have two children. In November 2017, Mother filed a petition for an order for

      protection against Father alleging domestic or family violence, 1 and the court

      issued an ex parte order for protection. In December 2017, Mother filed a

      petition for dissolution of marriage. In January 2018, the court issued a

      preliminary order that the parties share joint legal custody, Mother have

      primary physical custody, and Father have parenting time according to the Ind.

      Parenting Time Guidelines. The court also issued an order for protection

      against Father stating it expired on December 31, 2019. In March 2018,

      Mother filed a petition for the appointment of a guardian ad litem, 2 and the

      court appointed Kids’ Voice of Indiana as guardian ad litem. Father filed

      petitions for contempt in June, July, and August 2018 alleging Mother made

      doctor and dental appointments without communicating with him, did not

      provide him with information regarding schooling and daycare, started




      1
        Mother alleged that on one occasion Father pushed her and one of the children to the ground and stated
      “[n]o one can keep me behind bars,” on another occasion he grabbed one of the children hard by the arm,
      said he was going to teach him a lesson, and grabbed her wrist hard, and at another time he told her she was
      ugly and too old for anyone to want her and he would kill her family and himself, and she called the police.
      2
        Mother alleged Father had encouraged their five-year-old child to play with his handgun, she fears for the
      safety and well-being of her children, and the parties are members of a small ethnic community with certain
      cultural customs and expectations and asserted that the assistance of a guardian ad litem would benefit the
      court.

      Court of Appeals of Indiana | Opinion 19A-DC-1722 | February 28, 2020                            Page 2 of 11
      counseling for one of the children without informing him or asking if he agreed

      to the counseling, and did not inform him of a trip with the children outside the

      State of Indiana until they returned. Father also filed a petition to modify

      parenting time in August 2018 requesting that his midweek parenting time be

      modified from Wednesdays to Thursdays so he may attend a basketball

      program with one of the children.


[3]   On August 29, 2018, Kids’ Voice of Indiana filed a motion for the appointment

      of a parenting coordinator stating that guardian ad litem Sara Tait (“GAL

      Tait”) was the volunteer guardian ad litem on the case, she had spent hours

      meeting with the children and the parties, reviewing records, and interviewing

      third parties, and it had become evident the parties are not able to cooperate

      consistently to make necessary and timely decisions regarding parenting time

      changes and medical provider selection for the children. On September 6, 2018,

      GAL Tait filed a preliminary report stating Mother had a protective order

      against Father, Father maintains he turned in his weapon to the Sheriff’s

      department, the parties are “part of a small Pakistani community where, as

      explained to the GAL, the culture is very male-dominated and the children and

      wife are viewed as property,” Mother “appears genuinely concerned and fearful

      of [Father] and is currently in therapy,” and “[t]here are also allegations of

      threatening harm to the maternal family and taking the children out of the

      country.” Appellant’s Appendix Volume II at 68. The report stated that

      Mother’s pastor described Father as “tormenting” Mother and that the pastor

      had every reason to believe Father’s threats against Mother are serious. Id. at


      Court of Appeals of Indiana | Opinion 19A-DC-1722 | February 28, 2020     Page 3 of 11
      69. In her recommendation, GAL Tait stated the parties have not

      demonstrated an ability to effectively co-parent, and it was her recommendation

      that Mother have sole legal and physical custody subject to Father’s parenting

      time according to the parenting time guidelines.


[4]   On September 17, 2018, the court issued an order stating it had held a status

      hearing and appointed Robert Shive (“Coordinator Shive”) as the parenting

      coordinator. On January 4, 2019, Father filed a petition to modify parenting

      time stating he wished to enroll one of the children in a basketball program

      which meets on Thursdays, the matter was to be addressed with the parenting

      coordinator due to Mother’s assertion she was unwilling to switch parenting

      time nights due to the protective order and transportation issues it presented for

      exchanges, he attempted to resolve the matter through the parenting

      coordinator, and the matter was not resolved. On February 26, 2019, the court

      issued an order stating it had held a hearing and ordered that Father exercise

      midweek parenting time on Thursdays.


[5]   On March 22, 2019, GAL Tait filed a Guardian Ad Litem Report stating

      Mother continues to have significant concerns about one of the children’s

      anxiety and trauma associated with Father and his safety and eating at Father’s

      house, Father continues to be “frustrated by ‘hoops’ he needs to jump through

      to have access to his children,” and he expresses concern that Mother coaches

      the children against him. Id. at 84. GAL Tait stated, with respect to one of the

      children, “[i]n my nearly 9 years of being a GAL volunteer, I have never been

      more concerned about the welfare of a child than I am about [the child].” Id.

      Court of Appeals of Indiana | Opinion 19A-DC-1722 | February 28, 2020    Page 4 of 11
      She reported that, upon being told he was going to Father’s for a week, the

      child was hysterical and had a full-scale panic attack, and she reported that she

      did not believe the behavior was coached or faked. She stated “it was pure

      hysterics and difficult to watch” and, “[d]uring this time, I heard [the child]

      scream the following: ‘I hate my Dad’; ‘My Dad is the meanest’; ‘My Dad

      throws me on the ground’; ‘I’m going to kill myself’; ‘I never want to see my

      Dad again.’” Id. GAL Tait also stated Coordinator Shive reported the parties

      have been successfully utilizing Our Family Wizard, he noted Father is

      aggressive in communications but not insulting, and Coordinator Shive does

      not have the sense Father is as bad as Mother portrays. In her summary and

      recommendations, GAL Tait stated that she recommended one of the children

      begin trauma-related therapy, that the utilization of a parenting coordinator

      should continue, but that it is in the best interests of the children that one parent

      have sole decision-making authority, and she recommended that Mother have

      sole legal and physical custody.


[6]   On April 1, 2019, the court held a final hearing. GAL Tait testified that “with

      these parties in particular, what I was noting from the outset was it was very

      contentious . . . a lot of back and forth kind of small things causing issues.”

      Transcript Volume II at 26. She testified her goal was to provide tools so the

      parties could effectively co-parent. She testified Our Family Wizard had been

      helpful but was disappointed the parties were in court regarding midweek

      parenting time and she had hoped the issue could have been resolved through

      the parenting coordinator without court involvement. She recommended


      Court of Appeals of Indiana | Opinion 19A-DC-1722 | February 28, 2020      Page 5 of 11
      Mother receive legal custody and indicated the parties are unable to effectively

      co-parent even on very simple matters, day-to-day parenting causes extreme

      fighting between the parties, they had disagreements about health care for one

      of the children, and even with a parenting coordinator and Our Family Wizard

      tool they have not demonstrated the ability to come to a consensus on very

      simple things. She indicated Father did not feel like he was being informed by

      Mother, she spoke with Mother about keeping Father informed, the children

      “need a quarterback” and “somebody who can make decisions and then

      appropriately inform [Father] and give him access,” and there was constant

      bickering. Id. at 33.


[7]   Mother testified one of her children was seeing a therapist at Adult and Child

      center and believed the therapist could not build a rapport with the child, the

      child should see a new therapist, and Father’s participation in the therapy

      should be limited. When asked why she thought it was important she have sole

      legal custody, she testified that, in Father’s mind, she and the children were his

      property and that, when she sent him a note on Our Family Wizard that she

      wanted to enroll one of the children in a summer camp which the child

      previously attended, Father’s response was that he wanted to take the child to

      Pakistan. When asked if Our Family Wizard had assisted with sharing

      information, Mother replied “[a]s far as communication sake, yes, but decision-

      making, no. We always have to involve [Coordinator Shive] and ask him to

      make decision on several things.” Id. at 82. She also indicated she would like

      to see Coordinator Shive continue as the parenting coordinator and she


      Court of Appeals of Indiana | Opinion 19A-DC-1722 | February 28, 2020    Page 6 of 11
      objected to Father taking the children to Pakistan. She also indicated she

      wished for any passports for the children to be relinquished to her.


[8]   Father testified he disputes Mother’s allegations against him and believes she

      made the false allegations to obtain custody of the children. Father indicated he

      wished to take the children to Pakistan for a week or a couple of weeks for his

      sister’s wedding. He indicated Adult and Child center had many therapists and

      suggested checking into the availability of another therapist. On May 30, 2019,

      Father filed a motion requesting permission to travel to Pakistan with the

      children for two weeks during his summer parenting time.


[9]   In June 2019, the court entered a decree of dissolution providing in part:

              6. The Parties shall share joint legal custody of the minor children.

              7. Mother shall have primary physical custody of the minor children.

              8. Father shall be entitled to parenting time pursuant to Indiana
              Parenting Time Guidelines, plus every Thursday overnight and Sunday
              overnights on his every other weekend. All exchanges for regular
              parenting time shall occur at the children’s schools if school is in
              session. If school is not in session, the Parties shall exchange the
              children at the Beech Grove Police Station.

                                                        *****

              14. The Parties shall continue to utilize Our Family Wizard for all non-
              emergency communication.

              15. The Parties shall continue to utilize Robert Shive as a Parenting
              Coordinator for an additional six (6) months.

              16. This Court has clarified the protection order Mother has against
              Father to make it clear that Father is entitled to be present at functions,

      Court of Appeals of Indiana | Opinion 19A-DC-1722 | February 28, 2020           Page 7 of 11
               appointments and activities for the minor children and that the Parties
               can both be present at parenting time exchanges provided Father
               follows the protection order and does not approach or speak to Mother
               during these times.

       Appellant’s Appendix Volume II at 19-21. (17)


                                                     Discussion

[10]   Where a trial court enters findings of fact and conclusions, we first determine

       whether the evidence supports the findings, and we then determine whether the

       findings support the judgment. Lechien v. Wren, 950 N.E.2d 838, 841 (Ind. Ct.

       App. 2011). A judgment is clearly erroneous when a review of the record

       leaves us with a firm conviction that a mistake has been made. Id. The findings

       control only as to the issues they cover, and a general judgment standard

       applies to issues upon which the trial court made no findings. Id.


[11]   Mother claims the trial court abused its discretion in awarding the parties joint

       legal custody. She argues their ongoing conflict makes joint legal custody a

       constant battlefield and, despite almost one and one-half years of litigation, they

       have not demonstrated an ability to work together for the children’s best

       interests. She argues GAL Tait testified the parties were very contentious and

       expressed frustration the parties were unable to utilize the parenting coordinator

       to reach agreements. Father responds there is sufficient evidence to support the

       court’s determination. He asserts the record is almost entirely void of conflict

       regarding the children’s schooling, major medical decisions, or religious

       upbringing and, although the parties had communication issues and other


       Court of Appeals of Indiana | Opinion 19A-DC-1722 | February 28, 2020      Page 8 of 11
       disagreements, they ultimately demonstrated a general ability to communicate

       and work together to raise the children.


[12]   We review child custody determinations for an abuse of discretion. See Gonzalez

       v. Gonzalez, 893 N.E.2d 333, 335 (Ind. Ct. App. 2008). Ind. Code § 31-17-2-13

       provides “[t]he court may award legal custody of a child jointly if the court

       finds that an award of joint legal custody would be in the best interest of the

       child.” Ind. Code § 31-17-2-15 provides:

               In determining whether an award of joint legal custody under
               section 13 of this chapter would be in the best interest of the child,
               the court shall consider it a matter of primary, but not
               determinative, importance that the persons awarded joint custody
               have agreed to an award of joint legal custody. The court shall also
               consider:

                    (1) the fitness and suitability of each of the persons awarded joint
                    custody;

                    (2) whether the persons awarded joint custody are willing and able
                    to communicate and cooperate in advancing the child’s welfare;

                    (3) the wishes of the child, with more consideration given to the
                    child’s wishes if the child is at least fourteen (14) years of age;

                    (4) whether the child has established a close and beneficial
                    relationship with both of the persons awarded joint custody;

                    (5) whether the persons awarded joint custody:

                        (A) live in close proximity to each other; and

                        (B) plan to continue to do so; and

                    (6) the nature of the physical and emotional environment in the
                    home of each of the persons awarded joint custody.


       Court of Appeals of Indiana | Opinion 19A-DC-1722 | February 28, 2020          Page 9 of 11
       “‘Joint legal custody’, for purposes of . . . IC 31-17-2-13 . . . and IC 31-17-2-15,

       means that the persons awarded joint custody will share authority and

       responsibility for the major decisions concerning the child’s upbringing,

       including the child’s education, health care, and religious training.” Ind. Code

       § 31-9-2-67.


[13]   The factor under (2) of Ind. Code § 31-17-2-15 is of particular importance in

       making legal custody determinations. Milcherska v. Hoerstman, 56 N.E.3d 634,

       641 (Ind. Ct. App. 2016) (citations omitted). Where the parties have made

       child-rearing a battleground, joint custody is not appropriate. Id. at 642.

       “Indeed, to award joint legal custody to individually capable parents who

       cannot work together is tantamount to the proverbial folly of cutting the baby in

       half in order to effect a fair distribution of the child to competing parents.” Id.

       (citing Swadner v. Swadner, 897 N.E.2d 966, 974 (Ind. Ct. App. 2008)). We will

       reverse a trial court’s grant of joint legal custody when the evidence indicates

       the joint custody award “constitutes an imposition of an intolerable situation

       upon two persons who have made child rearing a battleground.” Swadner, 897

       N.E.2d at 974 (citation omitted). The primary concern of the courts with

       respect to legal custody is the welfare of the children and not the wishes of the

       parents. Carmichael v. Siegel, 754 N.E.2d 619, 635 (Ind. Ct. App. 2001).


[14]   We note the trial court did not enter any specific findings or conclusions

       regarding its reasons for, or the evidence in support of, its order that the parties

       share joint legal custody, or state that it found an award of joint legal custody

       would be in the best interests of the children. GAL Tait recommended Mother

       Court of Appeals of Indiana | Opinion 19A-DC-1722 | February 28, 2020      Page 10 of 11
       have sole legal custody of the children and reported the parties have not

       demonstrated an ability to co-parent even on simple matters. The court ordered

       that all exchanges of the children occur at the children’s schools or the police

       station and referenced Mother’s order for protection against Father. The record

       reveals Mother sought the order for protection, the court appointed a guardian

       ad litem at Mother’s request, Father filed multiple contempt allegations, and the

       court appointed a parenting coordinator following the guardian ad litem’s

       request. Based on the record before us, and in light of the parties’ history of

       non-cooperation, we conclude the court erred in ordering the parties to share

       joint legal custody.


[15]   For the foregoing reasons, we reverse the trial court’s order that Mother and

       Father share joint legal custody and remand for entry of a modified decree of

       dissolution providing that Mother have sole legal custody.


[16]   Reversed and remanded.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 19A-DC-1722 | February 28, 2020    Page 11 of 11
