As the Craig Scarberry case gains worldwide attention legal scholars, attorneys, religious freedom advocates, myself and, finally, Judge Pancol is speaking out. Unlike most of the other people who are reading the Order and applying knowledge of the law Judge Pancol is misstating the intent of the law and its application.
Pancol called me on Monday 29 November and tried to explain his position on the intent of the Indiana General Assembly and the statutory provisions that govern the determination of legal custody of a child. Pancol believes that one of the factors the court must consider is a parents religious beliefs and a child custody determination must be made inclusive of those beliefs.
He further stated that if the parents cannot agree on their religion then one parent must be designated as the sole legal custodian of the child. I disagreed and suggested to him that this was not the intent of the legislature. That parents who share legal custody have the responsibility of religious training but are not required to adhere to the same religion themselves.
So, let's see who is correct.
Here are the laws related to a determination of legal custody of a child in a divorce proceeding.
IC 31-9-2-67
"Joint legal custody"
Sec. 67. "Joint legal custody", for purposes of IC 31-14-13, IC 31-17-2-13, IC 31-17-2-14, and IC 31-17-2-15, means that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care, and religious training. (emphasis added)
As added by P.L.1-1997, SEC.1. Amended by P.L.95-2009, SEC.1.
IC 31-17-2-13
Joint legal custody; finding required for award
Sec. 13. The court may award legal custody of a child jointly if the court finds that an award of joint legal custody would be in the best interest of the child.
As added by P.L.1-1997, SEC.9.
IC 31-17-2-15
Joint legal custody; matters considered in making award
Sec. 15. In determining whether an award of joint legal custody under section 13 of this chapter would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall also consider:
(1) the fitness and suitability of each of the persons awarded joint custody;
(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
(3) the wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age;
(4) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.
As added by P.L.1-1997, SEC.9. Amended by P.L.3-2008, SEC.237.
The first thing to notice is that the law defines joint legal custody to include religious training as it concerns the "child's upbringing". Although I was not part of the process in 1997 when the law was originally written I have been a part of most child custody legislation since 2008 which included the amending of the joint legal custody laws.
It has always been clear to the legislators, lobbyists and others involved in writing and amending these laws that it has been everyone's intention that the education, health or religion of the parents not be considered but whether the parents can agree on and facilitate the education, health or religion of the CHILD.
Judge Pancol reasons that because Porcaro claims to be Christian and Scarberry is agnostic that they do not agree on religion and therefore his father, Master Commissioner Pancol, was correct is dismantling the parties legal custody agreement and giving Porcaro sole legal custody.
Where both Pancol's are misapplying the law is that they see the focus of the statutes being on the parents religion rather than the religious training of the child. That is simply not so.
Barger v Pate
In the published opinion Barger v Pate (2005), the court continued joint legal custody of the parties children over the objection of each parent. The court stated "[A] trial court may not modify custody until it determines that a substantial change has occurred and that a modification is in the child’s best interests. Mundon v. Mundon, 703 N.E.2d 1130, 1135 (Ind. Ct. App. 1999). The party seeking the modification bears the burden of demonstrating that the existing custody order is unreasonable because, as a general proposition, stability and permanence are considered best for the child. Haley v. Haley, 771 N.E.2d 743, 745 (Ind. Ct. App. 2002)."
The court went further to say "Here, the evidence suggests that Father and Mother each enjoyed a good relationship with J.B. However, the relationship between the parents was particularly acrimonious and each parent attempted to place responsibility for the lack of cooperation upon the other parent." Thus, even though the parents were disagreeable the court found that joint legal custody was in the best interest of the child.
Finnerty v Clutter
The published opinion Finnerty v Clutter [2009] is more instructive for the Scarberry case. The issue before the court was "whether the trial court abused its discretion by failing to order Father to take the children to church on Sunday during his parenting time or alternatively, by failing to adjust Father’s parenting time so that Mother could take the children to church."
Mother and father shared joint legal custody of the children. She appeals from an order which modified physical custody and also provided: “Church attendance on the Father’s weekend shall be his prerogative. The Court will recommend, but will not require, the children attend church during the Father’s parenting time, if it has been their practice in the past to do so.”
The issue is whether the trial court abused its discretion by failing to order Father to take the children to church on Sunday during his parenting time or alternatively, by failing to adjust Father’s parenting time so that Mother could take the children to church. In all parenting time controversies, courts are required to give foremost consideration to the best interests of the child. Downey v. Muffley, 767 N.E.2d 1014, 1017 (Ind. Ct. App. 2002).
According to Mother, the trial court abused its discretion by failing to allow her to take the children to church on Sundays or to order Father to do so because she “has the sole right to direct religious upbringing for the children.”
Father points out that the parties’ Agreed Final Order regarding their dissolution provided that the “parties shall have joint custody of the minor children”. The Order provided that the parents would share legal custody.
Here is what the Court of Appeals said in regards to joint legal custody: “Joint legal custody” means “that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child’s upbringing, including the child’s education, health care, and religious training.” Ind. Code § 31-9-2-67 (emphasis added). Because Father and Mother have joint legal custody, Father and Mother share authority and responsibility for decisions regarding the children’s religious training.
Understand that the court is saying that the parents share the responsibility not that they must agree. The trial court here made church attendance during Father’s parenting time “his prerogative,” but recommended that the children continue to attend church during his parenting time “if it has been their practice in the past to do so.” The trial court "recommended" that the father take the children to church if that had been their past practice but it was "his prerogative" to do so if he wished.
Similarly, in the Scarberry case the children had been attending church and a Christian daycare. But unlike in Finnerty v Clutter where the parties disagreed about taking the children to church, Scarberry still ensured that the children attended church and attended a Christian daycare. The issue was that he and Porcaro did not practice the same religion themselves.
The Court of Appeals continued with, "Recognizing Father and Mother’s shared authority and responsibility for decisions regarding the children’s religious training, we cannot say that the trial court abused its discretion here."
Finnerty v Clutter Conclusion
We conclude that the trial court did not abuse its discretion when it ordered that church attendance during Father’s parenting time was “his prerogative,” but recommended that the children continue to attend church during his parenting time “if it has been their practice in the past to do so.” Id. at 11. We affirm.
Affirmed. BARNES, Judge
NAJAM, J., and KIRSCH, J., concur.
One thing is very clear in this opinion that is analogous to the Scarberry case; that is that a judge is not required to award sole legal custody to a parent if the parties do not agree and that sharing the responsibilities of legal custody does not mean they must share or participate in the same religious training.
Pancol was clearly wrong when viewed in light of the opinion of this panel of the Indiana Court of Appeals.
Craig Scarberry filed his Notice of Appeal on 01 December 2010.
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