Those of us who are advocates and specialists in the child custody discipline know that what was known as the "tender years doctrine" has been empirically disproved. According to research by Warshak (2000), and Kelly and Lamb (2001), other things being equal, infants and toddlers – better than many experts once thought – are able to manage and even benefit from overnight periods of placement away from primary attachment figures. That is these children seem to adjust fine to overnights with other attachment figures, primarily the father.
Joan Kelly and Michael Lamb (2000) have found that infants and toddlers need regular periods of placement with each parent to maintain these attachments. Marsha Kline Pruitt and her colleagues (2007) emphasize that children adjusted well to “overnighting” with secondary placement parents when the schedule remained stable or “consistent” from one week to the next.
Although this research has been widely disseminated for nearly 10 years now there are still judges who adhere to outdated principles and concepts and have an explicit bias towards mothers in child custody placement decisions. Much to the detriment of these children they are not getting to spend overnights with secondary attachment figures and are therefore not developing those bonds.
The current Indiana Parenting Time Guidelines provide that newborns shall, at a minimum, spend three 2 hour periods with the father per week. If the father has significantly provided regular care to the child prior to the separation or divorce then overnights shall be considered. The Domestic Relations Committee now reviewing the Guidelines is going to amend them to presume, consistent with the latest research, that overnights with newborns is appropriate.
What has been unusual and is now rare is the bias that adolescent children automatically belong in the custody of the mother. It has long been held that a trial court must ensure “that the policy of stability remains a guiding factor in determining whether a custody order should be modified.” Bryant v. Bryant, 693 N.E.2d 976, 979 (Ind. Ct. App. 1998), trans. denied.
The effect of divorce or separation on children depends greatly upon not which parent is a primary caregiver but according to Blakeslee & Wallerstein (1989), the behavioral reaction of a child to divorce has been shown to correlate with the age group when the divorce or separation occurs.
As it is the policy of the State of Indiana and the empirical evidence demonstrates, children need stability, routine and permanency in child custody placement regardless of who the primary caregiver is. Our Court of Appeals has long held that it is erroneous to presume that a mother should have custody of her children simply based on the nature of the mother/child relationship. E.g., Brokus v. Brokus, 420 N.E.2d 1242, 1249 (Ind. Ct. App. 1981).
So with that set-up now let me move you onto the substance of this posting. The Indiana Court of Appeals on 28 February 2011 just rendered its decision in Sausaman v Hutchens which was heard at the trial court level by Judge Joe V Sutton.
Judge Joe V Sutton
The father, Gregory Sausaman, argued that the trial court erred by denying his motion to change custody. The panel found that Gregory met his burden of establishing a substantial change in relevant statutory factors and showed that modification was in his daughter’s best interests. The judgment was reverse and remand for further proceedings.
The Evidence
The following evidence is undisputed. Jennifer and Gregory’s marriage dissolved in 2006. Notwithstanding some instability in Jennifer’s living situation, L.S. remained in the same school through the next few years. In 2007 and 2008, although Jennifer still lived in Indiana and had custody of L.S., L.S. was spending the majority of her time at Gregory’s house. For example, from January through June 2008, L.S. spent an average 20.3 nights per month at Gregory’s house.
In August 2008, Jennifer left L.S. in Gregory’s custody and moved to Alaska. Their plan was for L.S. to live with Gregory during the school years and visit with Jennifer during summer breaks. Jennifer returned to Indiana in March 2009 and spent three days with L.S. Aside from those three days, L.S. did not see her mother between August 2008 and the summer of 2010, when L.S. traveled to Alaska.
During the nearly two years in which L.S. lived with Gregory, she lived in a neighborhood filled with friends and upstanding members of the community. She attended the same school, where she was very successful, involved, and well liked by peers and teachers. Gregory and Denise were both very involved with L.S.’s school and sports activities. L.S. spent a great deal of time with her paternal grandparents, and also occasionally saw her family on her mother’s side. L.S. appeared to be a happy, well adjusted, successful person during those years.
When C.S. was still living in Gregory’s home, there were not enough bedrooms for L.S. to have her own. So Gregory put up a ceiling-to-floor, wall-to-wall curtain in his bedroom, and L.S. slept on one side of the curtain while Gregory, and sometimes also Denise, slept on the other side. Gregory and Denise never engaged in any activity that would be inappropriate for L.S. to have overheard. C.S. has now moved out of Gregory’s home and L.S. has her own bedroom.
Substantial Change?
In sum, it is undisputed that for nearly two years before the hearing, L.S. lived with Gregory and saw Jennifer only once, for three days, before the summer of 2010. And even before Jennifer moved to Alaska, L.S. spent the majority of her time—including nights—with Gregory. L.S. thrived in every way in Gregory’s care and was well adjusted to her home, school, and community. We find that this evidence establishes that there was a substantial change in one or more of the section 8 factors between the time of the initial custody determination in 2006 and the time of the custody modification hearing in 2010.
Findings
Judge Sutton made his ruling based primarily on a 15 minute in camera interview of the child. He then found, the special bond between a mother and daughter should be fostered; L.S. needs to be with her mother so they can do “girl things[.]”
Conclusion
Even though Mother was the legal custodian of the child, L.S. had been living solely with her father for nearly two years and had been living primarily with him for years before that. She was thriving. It was erroneous to try to “fix” that situation by uprooting her from her community, school, extended family, brother, and father.
The judgment of the trial court is reversed and remanded for proceedings consistent with this opinion.
My final thought
It seems shocking to conceive that a judge could possibly remove a child from the living arrangement that she has known for over two years, in which she had no contact with mother, and change this because he thought she and mother should do "girl things". This is another of the examples in my arsenal of cases supporting legislation to require supported findings and conclusions from judges in child custody cases.
Judge Joe Sutton should crawl out of his cave more often and get educated about child development. Children are not a possession for parents to fight over. Children are not miniature adults who are immune from the harms caused by being uprooted and removed from significant attachments. But most applicable in this case, daughters are not over-sized dress-up toys that moms can play "girl things" with.
Judge Sutton drop your biases and pick up a book. Maybe then you can join those of us who actually seek to place children in custody arrangements that reflect their best interest.
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