Indiana Supreme Court rules Sole Custody UNCONSTITUTIONAL

In what legal scholars are calling the “most shocking case of judicial activism” they have seen during their careers the Indiana Supreme Court today issued a ruling in a child custody case that “wipes out virtually thousands of child custody orders”. The court found that the children of an Avon, Indiana couple were deprived of their constitutional liberties when the trial court provisionally awarded sole legal custody to the mother and gave the father parenting time consistent with the minimum recommendations in the Indiana Parenting Time Guidelines.

In the appeal brought by the father counsel for father argued that the 15 minute provisional hearing in the parties divorce did not meet sufficient due process requirements. In particular the court did not hear evidence as to all the factors that a court must consider under IC 31-17-2-8 during the provisional hearing but did do so at the four hour final hearing. Father's appellate brief relied mostly upon case law from termination of parental rights proceedings. The Indiana Court of Appeals, in upholding the ruling of the trial court, found that father's case citations were “not germane to a dissolution of marriage proceeding”. Reviewing court have long held that due process requires a greater consideration of evidence and factors in TPR proceedings than the standard for divorces. That is because in TPR proceedings the “government is seeking to sever the relationship between children and parents whereas in the immediate cause the court is only reallocating custodial responsibilities between parents on a temporary basis”. Father sought transfer to the Supreme Court which was granted on 10 November 2012.

In father's brief he argued that Indiana's statutory scheme requires the court to consider a minimum of eight factors when making a child custody determination. In a responsive filing counsel for mother argued that courts may issue temporary child custody orders absent a full consideration of the eight factors and that to require otherwise would contravene Indiana's statutory child custody scheme and, ironically, deprive parents of due process because there would not be enough time to adequately prepare for a full hearing. However, father had argued that 92% of the custody arrangements in provisional orders were maintained through the final order. Father's argument, based upon a 2009 report found on the internet which was done by a major university showing an analysis of cases in five randomly selected Indiana courts covering a span of three years and eight judges, was apparently convincing.

In expressing the opinion for the majority Justice Steven David wrote “It is clear from the analysis of Indiana's child custody rulings that provisional orders are a de facto final order. Like the immediate action most provisional hearings, lasting a half hour or less, do not afford the parties a meaningful opportunity to be heard on the factors most relevant to making final child custody decisions.” The majority opinion went on to further state that judges rely too heavily upon the status quo between the time of the provisional and final hearings without adequate consideration of the evidence and parent child relationship prior to the provisional hearing. Married parents share joint legal custody of their children in Indiana and either can make medical, religious or schooling decisions for the children. The Supreme Court found that stripping a parent of legal custody during a “cursory provisional hearing” which becomes the final order in 92% of cases does not meet due process standards and “deprives children of their right to the care and control” of parents who have not been found to be unfit to exercise decision making authority pursuant to a meaningful hearing on the issues.

In dictum the court cautioned parents to “not believe everything they read on the Internet” and wished all a “happy April Fool's Day!”

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

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