Tuesday, August 21, 2012

Understanding Joint Legal Child Custody - Indiana Law and Lawyers

This past week I wrote about parental access to school records in a case involving a mother, Kristy Moore, and father, Brian Moore, who share joint legal custody and equal parenting time pursuant to the Settlement Agreement approved by the court on 10 December 2009. In this matter Brian paid the enrollment fees for the children last week at the private school which they had previously attended. This week it was Kristy's time with the children but she didn't take the children to school claiming that it was too inconvenient for her.

In response Brian filed on Tuesday 14 August 2012 an Emergency Motion to Compel School Attendance alleging that Kristy had terminated the children's formal schooling during her parenting time. When Brian attempted to drop the children off at school that day while exercising additional parenting time while Kristy was at work the school then informed him that he could not bring the children to school there anymore.The following day, in response, Kristy's attorney -- Jonathan Deenik -- filed a counter motion requesting a hearing to determine the children's school. Brian had filed a similar motion on 02 August, over a week before school started, after he suspected that Kristy was not going to continue the children's formal education.

On Thursday 16 August 2012 Brian also filed a Motion for Rule to Show Cause alleging that Kristy had violated the court's joint custody order by unilaterally changing the school which the children would attend. While the legal custody statutes don't explicitly forbid unilateral decisions it is implicit in joint custody situations and every attorney, even Jonathan Deenik -- attorney for Kristy Moore -- knows this.

Indiana Code 31-17-2-17
Custodian may determine child's upbringing
     Sec. 17. (a) Except:
        (1) as otherwise agreed by the parties in writing at the time of the custody order; and
        (2) as provided in subsection (b);
the custodian may determine the child's upbringing, including the child's education, health care, and religious training.
    (b) If the court finds after motion by a noncustodial parent that, in the absence of a specific limitation of the custodian's authority, the child's:
        (1) physical health would be endangered; or
        (2) emotional development would be significantly impaired;
the court may specifically limit the custodian's authority. [emphasis added]

Indiana Code 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.
In stating that a "custodian may determine the child's upbringing, including the child's education, health care, and religious training " the law implies that parents awarded joint legal custody must agree upon such matters as school, healthcare and education. As a practical impossibility, two custodians cannot make opposing determinations for the child.

Thus, it is generally impermissible to make a change in one of the legal factors affecting a child absent an agreement between the parties or an order of the court. In this immediate case Brian had paid for the children's continued enrollment in their current school as the parties had agreed. Kristy had given indications over the Summer that she didn't want to have to take the children to that school any longer. She has not disclosed at which Indianapolis Public School she is now teaching but I can surmise that the children's school is not on her current route and she would have to awaken earlier to get the children to school.

So when it came time for her to take them to school she simply didn't do it and had a friend take the children to Brian for additional parenting time. Once confronted with Brian's Motion to Compel School Attendance, Kristy enrolled the children in South Madison Community Schools -- the school where the principal violated the school records law which I wrote about -- the next day.

However, she did not have the permission of the court nor had Brian agreed to the long distance change in schools. Brian immediately filed a Motion for Rule to Show Cause alleging that Kristy had violated the terms of the Settlement Agreement as adopted by the court. The court agreed stating, "Respondent and Petitioner do not have permission of the court to have the children attend a different school then [sic] they attended during the school year of 2011-2012 unless they both agree pursuant to the Settlement Agreement approved by the Court on December 10, 2009. If either party violates the Court's order, they may be found in contempt of Court" [emphasis added]

The Court is aware, Jonathan Deenik was aware and Kristy Moore was aware that both parties must agree to make a change such as schooling or religious indoctrination, or to make non emergency medical decisions. This does not mean that both parents are required to consent to all legal requirements such as permissions for school events. But this caveat does apply -- the other parent must be notified and if that parent objects then permission is not granted. Parents should attempt to agree on as much as possible because case law is clear that when parenting becomes a battleground then joint legal custody is not appropriate.

In the case of the Moore's it may not be. This latest action by Kristy and Jonathan Deenik clearly demonstrates their desperation. Although their are ample studies that directly correlate absenteeism and lack of parental involvement to lower academic performance this IPS classroom instructor chose to not send her children to school or provide home education. This only provides more support for former parenting coordinator John Ehrmann's recommendation that Kristy receive counseling which she never did.

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©2008, 2012 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.


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