Thursday, March 24, 2011

Opinion from Judge Kirsch on Depriving Children of a Father

In a 2007 appeal of the grant of a custodial mother's relocation pursuant to the Indiana Relocation Statute [IC 31-17-2.2 et seq] a panel of the Indiana Court of Appeals approved the mother's relocation. Judge James Kirsch gave a compelling dissent that deserves mention.

In 2009, the Indianapolis Bar Association presented Judge Kirsch with its highest award – the Hon. Paul H. Buchanan Award of Excellence in recognition of “his notable attainments as a lawyer and honorable service to the legal profession over an extended period time.”

Judge Kirsch and his wife Jan have two children, Adam and Alexandra. Judge Kirsch was retained on the Court in 1996 and 2006 and stands again for retention in the 2016 fall election.

In the present case the panel found that mother could relocate to Texas while father stayed in Indiana without disrupting the relationship between father and the children. Father had children three overnights per week and although he was not the primary person responsible for tending to the children's frequent medical appointments and daily needs he was still significantly involved.

In a custody evaluation by Dr Richard Lawlor, Lawlor opined that both were fine parents and he could not make a recommendation as to whether the relocation should be allowed or who should have custody.

Ultimately, the trial court found that it was in the best interest of the children to relocate to Texas and be near mother's extended family.

KIRSCH, Judge, dissenting.
How can depriving children of the presence of their loving and caring father in their daily lives be in their best interests?

My colleagues conclude that Father failed to carry his burden that Mother’s relocation to Texas was not in the best interests of his children without raising or answering this question. To me, it is of paramount importance. These children’s father will not be there to attend their birthday parties, school functions, recitals, concerts, science fairs, athletic contests, and extracurricular events. Their father will not be there for parent-teacher conferences. Their father will not be there to take them to school in the morning or to pick them up in the afternoon. Their father will not be there for their doctor and dentist appointments. Their father will not know their teachers, and he will not know their friends. Their father will not be there as they move into and through adolescence with all of its attendant challenges.

The choice before the trial court and here is not a custody determination between parents who live in different places. Mother said she would not move if the trial court denied it. Rather, the choice is between whether the children should live in the same community as both of their parents or should live with one parent several hundred miles away from their other parent. To me, the better choice is obvious.

The preamble to the Indiana Parenting Guidelines states that the Guidelines “are based on the premise that it is usually in a child’s best interest to have frequent, meaningful and continuing contact with each parent. It is assumed that both parents nurture their child in important ways, significant to the development and well being of the child.” Mother’s move to Texas will make such contact and such nurturing impossible.

I respectfully dissent.

I respectfully say that the children in Indiana would be in a much better position following familial breakdowns if we had trial court judges who would follow the lead of Judge James Kirsch. The first question judges should answer is: How can depriving children of the presence of a loving and caring parent in their daily lives be in their best interests?

If you need help with a relocation proceeding or any other child custody action please contact me.

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