I was reading the recent Indiana Court of Appeals opinions yesterday which reminded me of this question which is often presented to me; Why if when during my marriage we knew we could not afford to send our child to college but then as soon as we get divorced does a judge says we can and orders me to pay ___% of the costs?
In one of these cases the justices made a poignant remark about this very scenario -
"Until a dissolution petition is filed, the parents are free to decide between themselves financial matters involving the children, such as whether they will pay an allowance, whether they will buy cars for their children, or whether they will pay for a college education, to cite just a few examples. This autonomy ends with the filing of a dissolution petition." [Like v Like No. 71A04-0910-CV-570 UNPUBLISHED, emphasis added]
Marriage is a legally binding contract and when filed with the state can only be dissolved through certain procedures. The intended method as generally given through an oral affirmation is by death. Unfortunately few people have respect for this vow. The alternative method which is the procedure in about half of marriages commences with the filing of a Petition for Dissolution of Marriage in a circuit or superior court.
It is at this time that you have invited the government into your personal life and that of your children if you have any through that marriage. I want to stress again that it is you who did this. The initiation of the legal action by your spouse, albeit unilateral, is part of a process that you agreed to when entering into the marriage contract. So for everyone who has ever complained to me that you didn't invite the government into your life you can cease with that ill-founded rhetoric.
Consider what the government can order you to do with your child and marriage becomes a rather scary option. When you will see your child, what vaccinations your child will receive, the amount of money you will spend on your child's needs, what church your child will attend, who can come to your house while your child is there and many more intimate decisions that most people would never expect to be bound to by a court order. Most notable is that I have seen all of this ordered against the wishes of both parents. That is because the courts are bound to the undefined best interest of the child standard.
So, what is the alternative? Simply live together. But what if you have children. In marriage a mother and father have equal physical and legal custody rights to the children of the marriage. Not so without that contract. In Indiana a possessor standard is used. That is the mother is in possession of the child in the womb prior to any possession by the father and thus the child is her property.
That is long way from the days when children were specifically titled by statute as property of the male head of household. I specifically do not say father for the obvious reason. In one of these recent cases a dissenting justice reminds us of Haase v. Roehrscheid [1854]. In this case the court stated the it was the man who had a common law duty to support and educate his children. The power to make legal decisions about the child rested with the man exclusively.
Now we have let the pendulum swing to the other extreme. In Indiana a child born out-of-wedlock is in the custody of the mother exclusively. Statutory language has been created that sets forth procedures for a man to petition the court to establish his rights under law. This year I co-wrote and got passed legislation that later this year will allow unwed parents to establish joint legal custody at the time of the child's birth without having to involve the court.
So beyond establishing legal rights to a child why should a father get married. After all dissolution of marriage can be an expensive procedure which leaves the government micromanaging the life of you and your child. Try going through a paternity action or getting sued for support from a common law domestic partnership and you will see that marriage is no more a penalty.
In the area of child support payments though there can be a dramatic difference. By statute child support payments can be ordered retroactively to the birth of a child if the parents aren't married. In marriage, or rather the dissolution, child support payments are not to be ordered preceding the time of the filing of the dissolution petition. At least that is the way it is supposed to be.
One of these recent cases was an appeal from the decision of the Lake Circuit Court that ordered a father to pay to the mother child support money for the time during which they were married. The Court of Appeals rightfully reversed that decision. The alarming thing is it was not a unanimous ruling.
Getting back to the best interest of the child and how to keep the government from micromanaging the lives of you and your child is to get married and stay married. Empirical evidence clearly demonstrates that children of divorce are at risk of suicide, incarceration, mental illness, early pregnancy, divorce, sexual molestation or assault, poverty and physical abuse at rates substantially higher than children whose parents are married.
This is not to say that there are not unwed parents who do not do a better job than married ones and have well adjusted children. Neither are intact marriages immune from government intervention. A judge in Marion Indiana, Cale Bradford, demonstrated his absolute contempt for the United States Constitution when he ordered an Indianapolis couple to not expose their child to their religion of choice, Wicca, simply because Bradford preferred monotheistic religions.
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