Judge Allen rules in favor of Josh Merritt's mother in burial dispute

Greene Circuit Judge Erik C. Allen ruled Thursday afternoon that an 11-year-old boy, who died from injuries suffered in a fire accident April 18 in Scotland, can be buried as his mother wishes.

Allen heard testimony for about an hour Tuesday afternoon in a complaint for declaratory judgment filed by Josh Merritt's mother, Lisa M. (Crays) Burris.

The complaint followed an objection to the burial plans that was filed by the boy's biological father, Peter J. Merritt, of Clayton, N.Y.

Josh Merritt died June 24 and his funeral and burial was originally planned for July 1 in the Scotland Cemetery. A burial plot has been selected right next to Josh's best friend, Nicholas Decker, who also died from injuries suffered in the same April 18 fire. Nicholas passed away on May 29.

Peter Merritt wanted to have his son's body cremated and then his ashes be divided in half -- with a potion going to his mother and the other portion to him so he could take them back to New York for distribution in a river near his home.

During the hearing on Tuesday afternoon, Judge Allen stressed that he was going to have to do some soul-searching in looking at this obviously emotional case.

Judge Allen noted in his ruling that there was testimony during a hearing on Tuesday that was "speculation by others to what Josh may have wanted in terms of burial preference."

"There is no evidence of Josh ever having made a statement regarding what his preference would be," Allen wrote.

In his four-page written judgment order, Judge Allen pointed out "There is no definitive right or wrong answer whether to bury or cremate human remains, the merit of each method is subject to any given person's feelings and/or convictions. Further there is no presumption or favor in law for one method over another. The dispositive question presented in this case is not whether to order burial or cremation, but the appropriate dispositive question is which parent has authority to make the final decision."

In his findings of fact, the judge stated that the mother and father lived together with Josh until sometime in 2003 or early 2004. The father maintained "somewhat regular" contact with Josh until he moved to New York in 2004. He moved back to Greene County, but relocated in 2006 to New York, where he still resides.

The father claimed he had lost regular contact with the boy's mother, but the court said that claim is disputed because Lisa Burris had a number of relatives -- including her parents, siblings -- living in Greene County who have been continuously accessible to the father.

The judge also pointed out that Lisa Burris was granted sole legal custody of the young boy in 2004. The father was awarded "reasonable and seasonable parenting time."

Indiana law outlines that a decedent's surviving parents have the authority to designate the manner of final disposition and interment of a decedent's remains and either parent has such authority unless a licensed funeral director or licensed funeral home or cemetery association receives a written objection from the other parent.

Allen referred to a 2004 Indiana Court of Appeals case in the Matter of the Supervised Estate of K.A. Deceased that acknowledged, "Indiana had no case law that addresses the issue of whether a custodial parent has the right to make decisions regarding the disposition of a minor child's remains."

Judge Allen also wrote: "In determining the outcome of a case, the Court must look beyond the emotional and sympathetic facts of a particular case and make a decision based upon sound reasoning and good policy. When presented with the question of which parent has the final authority to decide how to dispose of a minor child's remains, until such time that the legislature enacts statutes or the higher Court establishes case law as find precedent, the trial Court's must evaluate the circumstances of each case on a case by case basis to determine an equitable and just outcome."

Judge Allen concluded his decision by writing, "Based upon the findings set forth herein the Court concludes that the balance of the equities is in favor of the mother and the court hereby orders the remains of Josh to be disposed of as directed by his mother, Lisa M. Burris."