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Can A Trial Court Modify Physical Or Legal Custody On Its Own Motion?

Can A Trial Court Modify Physical Or Legal Custody On Its Own Motion?1

In domestic cases, trial courts are given wide discretion to decide matters initially, such as when the parties divorce or later in child-support and/or physical and/or legal custody modification proceedings. Further, because so much time, emotion, and judicial resources go into domestic cases, Indiana’s appellate court gives trial courts vast leeway to judge the credibility of witnesses when deciding issues.2

Even if the Court of Appeals might have decided the case differently, it defers to domestic courts on how much weight to assign to a witnesses’ credibility. However, the appellate court’s do not defer to the trial court if it applies the wrong law and reviews those matters de novo (without any deference to the trial court). In these cases, the Court of Appeals applies the correct law, makes a ruling, and remands with instructions to the trial court on the order it is to enter.

These are fairly common legal standards that apply in civil litigation and are strongly adhered to in domestic litigation or more cases would get reversed and the parties would spend even more time and money litigating, usually to the detriment of their children. This noted, and because sometimes domestic trials drag on over several days, this blog addresses a different matter. What occurs if the trial court rules on a matter not before it?

Normally, the parties cannot raise new requests for relief during pending litigation, at least without an agreement, as this violates notice an opportunity to be heard. That is, you cannot prepare to put evidence on an issue just raised by the opposing party and not pending in a motion before the trial court. Thus, parties are limited to what is in their pleadings (the divorce petition if this is the original divorce action, and a responsive pleading, if any) or what is in the motion the hearing is being conducted on.

That said, acknowledging a trial court must decide all custody matters in a child’s best interests, for various reasons, trial courts have sometimes heard the evidence and sua sponte ordered a change in physical or legal custody that was not requested by pleading, motion, or an issue the parties raised during trial, put on evidence, and effectively asked the trial court to decide. However, Indiana decisional law had long prohibited trial courts from making a change in custody because they believe it is appropriate if the issue is not before the Court.3

Ultimately, this reflects two (2) important limits on judicial power to decide an issue in a child’s best interest. First, the court cannot make a best interest decision on a matter not pending before it by motion or raised by the parties during litigation. Second, in the context of relocation litigation, physical custody is at issue, but unless a party raises legal custody by motion to relocate or a response, relocation does not necessarily put legal custody before the court to decide.4

Ultimately, if a trial court decides issues not before it, it will be reversed on appeal. We hope this blog helps you understand that while the trial court is bound to act in your children’s best interests, it cannot decide an issue, not before it or it will be reversed on appeal. Ciyou & Dixon, P.C. advocates handle domestic cases of all types in all trial courts in Indiana’s ninety-two (92) counties. This blog is not written to provide legal advice, nor it is a solicitation for services. It is an advertisement.


  1. This is called modification sua sponte.
  2. Best v. Best, 941 N.E.2d 499, 502 (Ind.2011).
  3. Bailey v. Bailey, 7 N.E.3d 340, 344 (Ind. Ct. App. 2014).
  4. In re Paternity of W.R.H., 120 N.E.3d 1039, 1041 (Ind. Ct. App. 2019)
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Ciyou & Dixon, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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Based in Indianapolis and founded in 1995, Ciyou & Dixon, P.C. is a niche law firm focused on successfully dealing with the complexities of divorce, high-conflict child custody and family law. Known for their ability to solve extremely complex situations with high quality work and responsiveness, Ciyou & Dixon will guide you every step of the way. The family law attorneys at Ciyou & Dixon, P.C. will help you precisely identify your objectives and the means to reach your desired result. In addition, this practice focus is augmented by the firm's other three core areas, namely appellate advocacy, civil practice, and firearms law. Life is uncertain. Be certain of your counselSM.

Indianapolis Divorce Attorneys, Ciyou & Dixon, P.C. of Indianapolis, Indiana, offers legal services for Indianapolis, Zionsville, Noblesville, Carmel, Avon, Anderson, Danville, Greenwood, Brownsburg, Geist, Fortville, McCordsville, Muncie, Greenfield, Westfield, Fort Wayne, Fishers, Bloomington, Lafayette, Marion County, Hamilton County, Hendricks County, Allen County, Delaware County, Morgan County, Hendricks County, Boone County, Vigo County, Johnson County, Hancock County, and Tippecanoe County, Indiana.