The Indiana Parenting Time Guidelines [IPTG] were established with the concept of providing consistency in parenting time rulings. To that end there has been much success. As for judicial decisions establishing custody, those of us practicing in that arena have seen little consistency. Often times the higher courts have made rulings that seem to contradict each other when viewed without the knowledge of gender.
When gender was included it often was seen that the higher courts favoured placing children with mothers regardless of the particular circumstances and specific circumstances of the case would be tailored to support that prejudicial determination.
In Paternity of X.A.S., a published opinion decided on 04 June 2010, the Indiana Court of Appeals has thrown us another curve. This time the Court has reversed the trial court's modification of custody to the mother based upon father's insistence that he was moving to California with or without his child. The Court has sided with the father and reversed the trials court's change of custody to the mother.
It is difficult to tag this decision. I have been reading the decision repeatedly looking for what the Court intends to send as a message in this case.
Maybe the decision was an insipid one without any motivation other than making a decision in the best interest of the child. However, it is a published opinion. For clarification a "published" opinion means that it can be cited as caselaw. Essentially, in future appeals a party may refer to this case basically saying to the Court "here is what you said previously."
This case was decided but Judge Kimberly Mattingly in the Marion Superior Court. I have tremendous respect for Judge Mattingly and have spent numerous hours in that courtroom watching as she hears child custody cases. I believe that she clearly understands the needs of children and takes very seriously and appreciates her role as an arbiter of child custody disputes.
Although this case can be seen as the Court's willingness to establish policy in favour of fathers it can also be viewed as supporting relocation of children for financial purposes. At the same time I can see this case being used against giving fathers greater responsibility in the lives of their children or modifying custody.
I do not agree with the Court in this case nor do I side with Judge Mattingly completely. A careful examination of this case actually reveals that we may need to change the law.
At the opening the Court states, "Father and Mother both love their son and have been responsible, dedicated, involved parents."
This statement deserves pause. I would be extremely pleased if every decision was able to be introduced this way. Every child deserves two "responsible, dedicated, involved parents" and as much as we can do to accommodate that, we should.
The facts of the case are that both parents resided in Indianapolis and were actively involved in the life of their son. The boy, who is age 12, has been in the custody of his father for nine years at the time of the trial court decision in 2009. This was pursuant to the father petition to establish paternity filed in 1999.
Although there is no statements in the immediate record about why custody was awarded to the father in the 1999 filing mother has enjoyed liberal parenting time and the parents have cooperated to facilitate a healthy relationship for their son with each parent.
The Court acknowledged that "this situation will undeniably cause heartbreak for one of these parents" but inasmuch as someone must prevail "we find that while it is a close call, the record simply does not contain sufficient evidence to support a change from the status quo. Thus, we find that the boy should remain with his father."
Father has married a woman who is in the Navy. The ship she is stationed to has located in San Diego and father filed a notice of intent to relocate there. The mother objected to the relocation because she felt it would be best for their son to remain in Indianapolis where he had significant ties to the community and to extended maternal and paternal family members.
Father offered that he would pay for their son to fly back to Indianapolis for parenting time per the IPTG minimums.
On December 10, 2008, Father requested a Domestic Relations Counseling Bureau [DRCB] investigation, which the trial court granted. The DRCB filed its report with the trial court on May 1, 2009, recommending that X.A.S. be permitted to relocate to California with Father.
Judge Mattingly was not persuaded and denied the move of the child. She stated that father was free to move across the country but the child would stay here. The father said he would move regardless. She characterized father as being "folks who choose romantic partners over their children" and said she cannot "understand folks who can move clear across the country from their kids." I agree with her in that respect.
In my next post I will examine more closely the rationale that the Court used in reversing Mattingly and the implications that I feel this case may have on future child custody decisions.
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