Representative Phyllis Pond has introduced House Bill 1119 to the 117th session of the Indiana General Assembly. Here is the synopsis of the bill:
Establishes a rebuttable presumption that an award of joint legal custody is in the best interest of a child. Requires a court, if a party seeks to rebut the presumption, to consider: (1) the fitness and suitability of each of the persons awarded joint legal custody; (2) the ability of the parents to communicate and advance the child's welfare; and (3) whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody. Repeals a provision containing language that is relocated within the Indiana Code. Repeals a provision providing that a custodial parent may determine the child's upbringing.
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. [see I.C. 31-9-2-67] This is maintaining the standard enjoyed by married parents which has served children well.
There is a common misconception that joint legal custody is only appropriate when the parents agree on the child's education, health care and religious training. It is not so simple as that. The best interest of the child standard is to be applied when determining whether joint legal custody is appropriate.
The presumption of joint legal custody does not require that a court order joint legal custody to the parents. To help provide an understanding I will make a comparison to criminal law.
We should all be familiar with the presumption of innocence. That doesn't mean that a judge or jury must find the defendant not guilty, it is just to be assumed from the start unless evidence is presented that confirms guilt beyond a reasonable doubt.
There is also the assignment of felony cases to jury trial. This is an opt-out provision. The defendant may choose not to have a jury trial but is not required to do anything to request a jury trial. Similarly, a parent is not required to make a showing that it is in the best interest of the child that the parents share joint legal custody. Instead, a parent who does not want joint legal custody must make a showing why it is not in the best interest of the child. A judge may also make the decision sua sponte, without being requested to do so.
Educational issues cover a wide range. Some parents have a preference for their child to achieve mastery of grades in school while others encourage and promote full comprehension and understanding of a subject matter. The difference is training versus learning.
I flunked plenty of classes in high school. In senior year English I had an overall grade of less than 20% but did have the highest score on the final exam. This was because I placed a higher priority on understanding the concept rather than demonstrating an ability to complete homework assignments. In short I spent my time taking in information rather than writing it down for someone else. I chose to fulfill my needs.
I tell my son that I could care less about his grades. I want him to study and understand those subjects which interest him but to never place schooling above his health and well-being. Therein lies a conflict on education between his mother and I. But it is not so great as whether I want him placed in a public school or to receive my personal one-on-one educational experience that we had agreed to before he was born. That is a situation where a definite decision must be made and allowing one parent to dedicate his time and efforts to the child while the other dumps him off in a school could have adverse results.
A very thought provoking educational case is Higginbotham v Higginbotham [In Ct App 2004] where the parties joint legal custody was terminated as was the child's midweek parenting time with Father. Father sought appellate review. The judgment of the trial court was upheld.
The parties had agreed to continue joint legal custody and such was recommended to the court in a custody evaluation that was performed by Dr. John C. Ehrmann, Jr., who also recommended the appointment of a parenting time coordinator.
At hearing Mother raised concerns about child returning from her Wednesday night visitations with Father with homework that is incomplete or that needs to be redone, and she does not get assistance at Father’s home with her homework. The child’s most recent report card reflected below average grades in Science, Math, and Social Studies, and she did not pass the portion of ISTEP testing relating to English and Language Arts.
The trial court gave full physical and legal custody of the child to Mother, eliminating the child's midweek parenting time and conditioning its resumption upon the child showing a “vast improvement in her scholastics.” Apparently Judge Matthew G. Hanson felt that Father had such a profound impact on the child's educational demonstration through four weekly hours that her ability to pass ISTEP or her classes hinged solely upon Wednesday night homework assignments. A claim I find spurious at best.
Most disturbing about this ruling though is that it appears to be punishing the child for her failing grades by denying to her time with her father. In its ruling though the court found that that the parties agreement and Dr Ehrmann's recommendation aside it was in the child's best interest to be in the sole custody of Mother based on the child's educational performance. Something about that just strikes me as illogical though.
I think of a corollary to malnutrition. If the child was failing to meet certain health standards and appeared to be suffering from malnutrition I would look more to the parent who had the child the vast majority of the time versus the one with only four hours during the weekday week.
Next is health care. Parents may disagree as to when a child should be taken to a doctor for non-emergencies. This could be level of fever, cuts and scrapes or degree of the common seasonal sicknesses. I am not one to medicate at first opportunity while my son's mother is. I believe fever serves a purpose and unless it exceeds 103-104 degrees area should not be medicated. These are differences that we will not agree on. I am never ill and taking a day off because of it. My body easily combats infectious germs on its own. On the opposite spectrum is her drug dependency and regular and expected days off for her and my son every winter when they are sick.
An area of contention that would require a clear demarcation is on issues such as vaccinations. This is not a temporary situation. This is injecting a child with a potentially disabling or deadly toxin in hopes of avoiding the potential for a disabling or deadly infection. Parents have strong convictions on this issue. If there are enough disagreements such as this then joint legal custody would not be appropriate.
There is also the health care issue of spiritual healing versus commercial medicine. Courts have intervened in both dissolution case and CHINS cases where a parent or parents may have chosen spiritual healing for a child with life threatening illnesses.
It would be appropriate for a court to issue a sole custody order where the parents disagree so much as to the child's health care where one may be refusing to facilitate treatments for a debilitating disease.
Finally, there is Religion. The case of Finnerty v Clutter [In Ct App 2009] is most instructive and shows how progressive our Court of Appeals has been in just five years. Both parents shared joint legal custody but an issue arose concerning the religious training of the children. Mother was the primary physical custodian. Father sought to modify the custody order to have additional parenting time.
In Finnerty Mother appealed asking the panel to determine 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.
The parties had two children and during their marriage Mother and Father began attending a Catholic church with the children. Following the dissolution, Mother continued to attend a Catholic church, enrolled one child in a Catholic elementary school, and took the other to Wednesday evening religious education classes. She also wanted to take the children to Sunday evening mass during Father's parenting time.
Mother argued, through legal counsel, that since she was the primary physical custodian that she was entitled to make the legal decisions for the children including their religious training. However, “Physical custody and legal custody are not equivalent.” Reno v. Haler, 743 N.E.2d 1139, 1141 (Ind. Ct. App. 2001). Thus, Mother's argument fails. It is then left to the panel to determine whether the trial court abused it's discretion in not ordering Father to take the children to church or modifying parenting time to allow her to do so.
The panel concluded that since "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."
What is important to take from this case is that the parents share authority and responsibility not that they agree, nor that they follow the same practices. There is currently a similar case before a different panel of the Court of Appeals.
In Scarberry v Scarberry the issue involves whether the trial court was in error by dissolving the parents joint legal custody agreement because "Father was agnostic". Commissioner George C Pancol found that because Mother continued to profess that she is Christian while Father has changed his practices to being agnostic that joint legal custody was not in the best interest of the children. I previously wrote about how Pancol Misstates the Law and an Examination of the Order in Scarberry v Scarberry which demonstrate the appropriate standard for joint legal custody.
More recently in the Scarberry case the Mother, Christine Porcaro, has discontinued medical treatment of Cerebral Palsy for their youngest child. Although the doctors maintain that it is a clear need and Father, Craig Scarberry, wants to continue the treatments he is no longer able to legally do so.
A presumption does not require that the parties be awarded or forever maintain joint legal custody. It does, however, require a judge to find why joint legal custody is not in the best interest of the child if sole custody is awarded.
Consider the value of a second opinion, having two parents available to make these decisions, and the harm that can come from a parent who gains sole custody and then decides to hurt the other parent by harming the child. It then makes sense that a presumption of joint legal custody is in the best interest of children and should be law.
Establishes a rebuttable presumption that an award of joint legal custody is in the best interest of a child. Requires a court, if a party seeks to rebut the presumption, to consider: (1) the fitness and suitability of each of the persons awarded joint legal custody; (2) the ability of the parents to communicate and advance the child's welfare; and (3) whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody. Repeals a provision containing language that is relocated within the Indiana Code. Repeals a provision providing that a custodial parent may determine the child's upbringing.
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. [see I.C. 31-9-2-67] This is maintaining the standard enjoyed by married parents which has served children well.
There is a common misconception that joint legal custody is only appropriate when the parents agree on the child's education, health care and religious training. It is not so simple as that. The best interest of the child standard is to be applied when determining whether joint legal custody is appropriate.
The presumption of joint legal custody does not require that a court order joint legal custody to the parents. To help provide an understanding I will make a comparison to criminal law.
We should all be familiar with the presumption of innocence. That doesn't mean that a judge or jury must find the defendant not guilty, it is just to be assumed from the start unless evidence is presented that confirms guilt beyond a reasonable doubt.
There is also the assignment of felony cases to jury trial. This is an opt-out provision. The defendant may choose not to have a jury trial but is not required to do anything to request a jury trial. Similarly, a parent is not required to make a showing that it is in the best interest of the child that the parents share joint legal custody. Instead, a parent who does not want joint legal custody must make a showing why it is not in the best interest of the child. A judge may also make the decision sua sponte, without being requested to do so.
Educational issues cover a wide range. Some parents have a preference for their child to achieve mastery of grades in school while others encourage and promote full comprehension and understanding of a subject matter. The difference is training versus learning.
I flunked plenty of classes in high school. In senior year English I had an overall grade of less than 20% but did have the highest score on the final exam. This was because I placed a higher priority on understanding the concept rather than demonstrating an ability to complete homework assignments. In short I spent my time taking in information rather than writing it down for someone else. I chose to fulfill my needs.
I tell my son that I could care less about his grades. I want him to study and understand those subjects which interest him but to never place schooling above his health and well-being. Therein lies a conflict on education between his mother and I. But it is not so great as whether I want him placed in a public school or to receive my personal one-on-one educational experience that we had agreed to before he was born. That is a situation where a definite decision must be made and allowing one parent to dedicate his time and efforts to the child while the other dumps him off in a school could have adverse results.
A very thought provoking educational case is Higginbotham v Higginbotham [In Ct App 2004] where the parties joint legal custody was terminated as was the child's midweek parenting time with Father. Father sought appellate review. The judgment of the trial court was upheld.
The parties had agreed to continue joint legal custody and such was recommended to the court in a custody evaluation that was performed by Dr. John C. Ehrmann, Jr., who also recommended the appointment of a parenting time coordinator.
At hearing Mother raised concerns about child returning from her Wednesday night visitations with Father with homework that is incomplete or that needs to be redone, and she does not get assistance at Father’s home with her homework. The child’s most recent report card reflected below average grades in Science, Math, and Social Studies, and she did not pass the portion of ISTEP testing relating to English and Language Arts.
The trial court gave full physical and legal custody of the child to Mother, eliminating the child's midweek parenting time and conditioning its resumption upon the child showing a “vast improvement in her scholastics.” Apparently Judge Matthew G. Hanson felt that Father had such a profound impact on the child's educational demonstration through four weekly hours that her ability to pass ISTEP or her classes hinged solely upon Wednesday night homework assignments. A claim I find spurious at best.
Most disturbing about this ruling though is that it appears to be punishing the child for her failing grades by denying to her time with her father. In its ruling though the court found that that the parties agreement and Dr Ehrmann's recommendation aside it was in the child's best interest to be in the sole custody of Mother based on the child's educational performance. Something about that just strikes me as illogical though.
I think of a corollary to malnutrition. If the child was failing to meet certain health standards and appeared to be suffering from malnutrition I would look more to the parent who had the child the vast majority of the time versus the one with only four hours during the weekday week.
Next is health care. Parents may disagree as to when a child should be taken to a doctor for non-emergencies. This could be level of fever, cuts and scrapes or degree of the common seasonal sicknesses. I am not one to medicate at first opportunity while my son's mother is. I believe fever serves a purpose and unless it exceeds 103-104 degrees area should not be medicated. These are differences that we will not agree on. I am never ill and taking a day off because of it. My body easily combats infectious germs on its own. On the opposite spectrum is her drug dependency and regular and expected days off for her and my son every winter when they are sick.
An area of contention that would require a clear demarcation is on issues such as vaccinations. This is not a temporary situation. This is injecting a child with a potentially disabling or deadly toxin in hopes of avoiding the potential for a disabling or deadly infection. Parents have strong convictions on this issue. If there are enough disagreements such as this then joint legal custody would not be appropriate.
There is also the health care issue of spiritual healing versus commercial medicine. Courts have intervened in both dissolution case and CHINS cases where a parent or parents may have chosen spiritual healing for a child with life threatening illnesses.
It would be appropriate for a court to issue a sole custody order where the parents disagree so much as to the child's health care where one may be refusing to facilitate treatments for a debilitating disease.
Finally, there is Religion. The case of Finnerty v Clutter [In Ct App 2009] is most instructive and shows how progressive our Court of Appeals has been in just five years. Both parents shared joint legal custody but an issue arose concerning the religious training of the children. Mother was the primary physical custodian. Father sought to modify the custody order to have additional parenting time.
In Finnerty Mother appealed asking the panel to determine 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.
The parties had two children and during their marriage Mother and Father began attending a Catholic church with the children. Following the dissolution, Mother continued to attend a Catholic church, enrolled one child in a Catholic elementary school, and took the other to Wednesday evening religious education classes. She also wanted to take the children to Sunday evening mass during Father's parenting time.
Mother argued, through legal counsel, that since she was the primary physical custodian that she was entitled to make the legal decisions for the children including their religious training. However, “Physical custody and legal custody are not equivalent.” Reno v. Haler, 743 N.E.2d 1139, 1141 (Ind. Ct. App. 2001). Thus, Mother's argument fails. It is then left to the panel to determine whether the trial court abused it's discretion in not ordering Father to take the children to church or modifying parenting time to allow her to do so.
The panel concluded that since "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."
What is important to take from this case is that the parents share authority and responsibility not that they agree, nor that they follow the same practices. There is currently a similar case before a different panel of the Court of Appeals.
In Scarberry v Scarberry the issue involves whether the trial court was in error by dissolving the parents joint legal custody agreement because "Father was agnostic". Commissioner George C Pancol found that because Mother continued to profess that she is Christian while Father has changed his practices to being agnostic that joint legal custody was not in the best interest of the children. I previously wrote about how Pancol Misstates the Law and an Examination of the Order in Scarberry v Scarberry which demonstrate the appropriate standard for joint legal custody.
More recently in the Scarberry case the Mother, Christine Porcaro, has discontinued medical treatment of Cerebral Palsy for their youngest child. Although the doctors maintain that it is a clear need and Father, Craig Scarberry, wants to continue the treatments he is no longer able to legally do so.
A presumption does not require that the parties be awarded or forever maintain joint legal custody. It does, however, require a judge to find why joint legal custody is not in the best interest of the child if sole custody is awarded.
Consider the value of a second opinion, having two parents available to make these decisions, and the harm that can come from a parent who gains sole custody and then decides to hurt the other parent by harming the child. It then makes sense that a presumption of joint legal custody is in the best interest of children and should be law.
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1 comment:
However when there is any evidence of domestic violence then everything changesl....and a quilty plea to a violation of the protection order should be considered evidence!!
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