Indiana SB 560 - Presumptive Joint Physical Custody

New Bill Seeks to Allow Children to Maintain a Relationship with Both Parents.
by Stuart Showalter

On 20 January 2009 Senator Dennis Kruse introduced SB560, Presumptive Joint Custody Following Divorce. The digest, which is a synopsis, of the bill is as follows:

Joint physical and legal custody. Establishes a rebuttable presumption that joint legal custody and joint physical custody are in the best interests of a child in a dissolution of marriage. Requires the court to provide written findings if the court finds the presumption has been rebutted and joint custody is not in the best interests of the child. Provides that a court may reduce or cease parental contact between a parent and the parent's children only if the court makes written findings of fact based on clear and convincing evidence of substance abuse, spousal abuse, or child abuse or neglect. Provides that if a parent knowingly falsely accuses the other parent of child abuse or neglect or spousal abuse, the parent who was falsely accused may challenge the parental fitness of the accusing parent. Provides that during the pendency of a custody case, if both parents were residing in the home before filing for dissolution of marriage, each parent shall maintain an equal time share allocation between the parents and the children. Permits a court to cease or reduce contact between a parent and child during a pending dissolution case if the court makes written findings that substance abuse, spousal abuse, or child abuse or neglect occurred. Provides procedures if a parent is relocating. Changes the time a parent must file an objection to a relocation of a child notice. Provides that if a parent knowingly and intentionally prevents the other parent from the other parent's parenting time with a child, a court shall hold the parent in contempt of court. Provides that each parent is financially liable for their own attorney's fees concerning child custody matters. Provides that divorced parents with a child shall alternate years when the parent may claim the federal dependent tax deduction. Provides that certain recorded evidence is admissible in court in family law proceedings. Requires meetings, hearings, and conferences in a family law action to be recorded. Requires the division of state court administration to compile statistics concerning the failure to pay child support.

Senator Kruse represents portions of three counties in the Fort Wayne area. He has served in the Senate since 2004 after serving in the House since 1989. We have not yet had a meeting but are hoping to get together at the Statehouse sometime soon. If we are unable to do that I will make the trip to Fort Wayne.

I ask that all supporters of children contact Senator Bray and ask that SB560 be set for a hearing. I will be testifying on numerous child related bills this year and am very excited to present testimony on this bill.

When I asked Senator Kruse what his basic principle in seeking this legislation was he told me, "When a divorce case is filed in Indiana, equal status should be afforded the husband and wife.  Evidence should be presented by both parties.  The [court] can decide from the evidence how child custody should be handled." To learn more about Senator Kruse visit his website.

I agree with nearly everything that has been included in this bill. Much of it is based purely on fundamental due process and actually preserving what is in the best interest of the children. The bill very logically lays out a plan for child custody orders based upon real world factors that need to be considered. It is obvious that Senator Kruse cares deeply for children and wants to see them have th necessary access to the parents that were raising them.

It is for those reasons that I think the bill will be soundly rejected in the General Assembly. It has been my longtime experience that logic and legislation do not exist on the same plane. Hopefully, we will find a majority of legislators who feel the well-being of children is worth going against the status quo. I have detailed for you some of the major provisions of this bill.

Presumptive Joint Custody

This bill would provide that in a custody proceeding the court, in determining the best interests of the child, must consider that there is a rebuttable presumption that joint legal custody and joint physical custody are in the best interests of the child. Currently under Indiana Code 31-17-2-8 there are eight factors to be considered in determining custody. This bill would add four new factors that are based more on providing for the best interest of the child.

1) The capacity and disposition of the parents to provide the child love, affection, guidance, and protection has not been a statutory requirement although it is truly the most important of the factors to be considered.
2) The capacity and disposition of the parents to provide the academic and religious education of the child.
3) The capacity and disposition of the parents to provide food, clothing, and medical care.
4) The willingness and ability of each of the parents to demonstrate facilitation and encouragement of a close and continuing relationship between the child and the other parent.

An important provision of this bill is the requirement that the burden of overcoming the presumption of joint custody rests on the parent challenging the presumption. One thing I have fought for and included in my 2007 proposal was that the presumption may be overcome only by clear and convincing evidence of the unfitness of the parent to be denied custody.

In requiring more accountability of judges, this bill also would require that if the court finds that the presumption of joint custody has been rebutted, the court shall include written findings in its order concerning the factors relevant in rebutting the presumption and the reasons that joint legal or physical custody is not in the best interests of the child.

The fallacy that is often raised of joint custody leads to more court battles is addressed in this bills mediation provision. After a child custody order is entered, the parents will share decision making authority and responsibility regarding important decisions affecting the child's welfare. If parents are not able to agree to important decisions affecting the child's welfare, this bill would mandate that the parents submit the issue to a mediator selected by the court. The parents would be bound by the mediator's decision.

Relocation

This bill would reduce the time from 60 to 30 days that a parent must file an objection to a proposed relocation. The parent objecting would also have to file a proposed custody order, a proposed parenting time order, and a proposed child support order. There would be a presumption that relocating is not in the best interest of the child. In determining whether a relocating parent has overcome the presumption against relocation with a child, the court shall give equal consideration to the following seven factors.
1) Whether the child will lose substantial contact, joy, and rearing with the nonrelocating parent.
2) Whether the relocation with the child would improve the general quality of life for the child.
3) The relocating parent's motives for seeking the relocation.
4) Whether the costs of transportation are financially affordable by both parents.
5) Whether the relocation with the child will cause hardship or undue burden on the nonrelocating parent.
6) Access to extended family support.
7) The impact on the child, including whether the relocation is harmful to the health or well-being of the child.

Parenting Time Contempt

One thing that has long been ignored by judges is custodial parents denying their child the opportunity to have visitation time with the other parent. This bill would require that judges now find the offending parent in contempt if that parent knowingly and intentionally prevents the other parent from exercising parenting time with a child as set forth in a parenting time order. The court would be required to hold the violating parent in contempt of court and order the violating parent to give compensatory time to the other parent equivalent to the lost time.
The court would also be required to take at least one action from a list of penalties which include, assessing a five hundred dollar ($500) fine, confining the offending parent in jail or changing custody or the parenting time order.

Law Enforcement

One additional provision which is based on one of the biggest complaints I hear requires law enforcement officers to make a report of the incident. No longer will the typical excuse of "That's a civil issue, we can't get involved" be acceptable. A law enforcement officer who responds to a call involving parenting time contempt shall file a report with the law enforcement agency that the officer is employed with stating the date and time of the response and a description of the incident.

Data Collection

For the first time in Indiana data would be collected on child support payment contempt charges. Statistics concerning the number of individuals who are incarcerated or are confined in jail for contempt of court for failing to pay child support, including the length of sentence and the amount of time individuals spent in jail, must be compiled under this bill.

Additional information and the complete text of the bill may be found here.