Bill for Presumptive Joint Legal Custody headed to the Indiana General Assembly

The Indiana Child Support and Custody Advisory Committee [ICSSAC] of the Indiana General Assembly [IGA] met in open session on Wednesday 26 October 2011 to discuss and receive testimony about a proposal requiring judges to presume that both parents involved in a divorce should continue to share joint legal custody of the children following dissolution. Additionally, two proposals to amend the age of emancipation of a child whom a parent is obligated to pay support to were also heard. I wrote about those here.

I will cover only the joint legal custody issue today and later present to you additional reading about Joint Legal Custody and Shared Parenting.

Longtime Committee member and state representative Phyllis Pond broached the subject of Joint Legal Custody and Shared parenting in general. She introduced 3067 which establishes a presumption that divorcing parents are both entitled to maintain legal custody of their children following dissolution.

You may read about the introduced bill from the 2011 session of the IGA here.

The proposal does not affect parenting time or establish a requirement for joint legal custody. This proposal does not engender any new rights upon a parent but simply requires that cause be shown before stripping a parent of his or her legal right to be involved in the decision making for major issues of their children which that parent possessed while married. These are delineated by statute at 31-17-2-17 and includes education, health, religion and generally discipline.

In past years similar legislation has failed to win support and get passed into law. The arguments against this proposal usually fall within the realm of increased litigation and conflict among parents. Further speculation by opponents suggests that an abusive parent will use the presumption as a tool to further harass or harm the other parent.

During Committee discussion Magistrate Kimberly Mattingly, a new member, echoed that viewpoint and also stated that she believes that it will create a greater burden upon judges to justify a sole custody decision.

Senator Greg Taylor who is also a family law attorney retorted that a person who is responsible for making a decision that can affect a child for the rest of his or her life should have to expend some effort and careful consideration into that decision. Senator Susan Glick alleges that this presumption will put children in the middle and causes conflict and stress on the children. However, studies of the psychological impact on children indicate that Joint Legal Custody can mollify parental conflict and benefit the children.

Senator Taylor was adamant that Indiana needs to send a clear message that it takes two parents to parent a child. Joint Legal Custody appears to be an important symbolic statement that serves to preserve and encourage continued commitment to the role of parent and involvement of nonresidential parents in the lives of their children.[fn1]

Following some discussion Representative Pond requested that two votes be taken; one that includes paternity cases in the proposal as written and one that excludes paternity cases. The argument propounded against inclusion of paternity cases is that parents out-of-wedlock have not established a relationship such as that which married parents have.

After a period of rumination the Committee Chair, Senator Steele, asked Representative Pond which way she wanted out-of-wedlock parents treated in the proposal. She was quite candid and in true political fashion stated that she wanted a vote on whichever status would get Committee approval. The vote was called for on the proposal as written.

Members voted as follows;

OPPOSED
Peter Nugent
Magistrate Kimberly Mattingly
Senator Susan Glick

SUPPORTED
Kathryn Hillebrands Burroughs
Representative Randy Frye
Senator Greg Taylor
Representative Pond
Bruce Pennamped
Chairman Brent Steele

The proposal passed from ICSSAC with a recommendation to become law by a vote of 6-3.

23 other states have a presumption or preference for joint custody parenting. This may include both physical and legal custody in some states. A preference requires that a court first consider joint custody so long as it is not contrary to the child's best interest. A presumption requires the court to presume that joint custody is in the best interest of the child but allows for a rebuttal of that presumption. A presumption is the stronger of these two classes.

Fathers being relegated to a secondary class of parent is an arcane concept that is not fitting with today's societal norms where women are often the primary earner or worker and numerous fathers provide primary parenting of the children. It is time for Indiana to bring it's statutes within the norms of the reflection of modern family structures and make Joint Legal Custody a presumption for divorcing parents.

[1] A Psychological Perspective on Shared Custody Arrangements; Wake Forest Law Review, Summer 2008; Christy M Buchanan & Parissa L Jahromi.

If you need assistance with a child support or custody issue please visit my website and contact my scheduler to make an appointment to meet with me.

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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.

©2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.