Wednesday, March 19, 2014

Shared Parenting Time, Joint or Sole Legal Custody, and Joint or Primary Physical Custody - Indiana

19 March 2014

Today I present to you some of the aspects and considerations of parenting time, legal custody, and physical custody in Indiana and the effects these have on children. To begin I will provide definitions to some of the terms that are used in relation to child custody.

Legal custody is the designation of who shall decide the major life practices of the child such as health care, religious activities, and education.
Physical custody is the determination of how a child's time shall be divided between the parents or other custodians.
Parenting time is the contemporary term applied to physical custody that replaces “visitation” so as to embody the spirit that a parent's time with his or her children embraces all of the attendant responsibilities of parenting including social and emotional development.
Primary physical custodian is the parent who has the child for the most significant portion of time.
Shared Parenting is the term applied to parents who exercise a division of time with the children that allocates no less than generally 35-45% to each parent depending upon the jurisdiction or general practices of the court.
Sole custodian is the designation given to the person who is granted authority to singly make the major life decisions of the child such as health care, religious activities, and education.

I am presenting the relevant statutes first and will then refer to them by code in subsequent commentary. In Indiana the decision on legal custody and parenting time in dissolution of marriage are as follows;

IC 31-17-2-8 - Custody order
Sec. 8. The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(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) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.
As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.7;P.L.133-2002, SEC.32.

IC 31-17-2-13 - Joint legal custody; finding required for award
Sec. 13. The court may award legal custody of a child jointly if the court finds that an award of joint legal custody would be in the best interest of the child.
As added by P.L.1-1997, SEC.9.

IC 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.
As added by P.L.1-1997, SEC.9. Amended by P.L.3-2008, SEC.237.

IC 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.
As added by P.L.1-1997, SEC.9.

In Indiana the decision on legal custody and parenting time in paternity cases is governed by the Indiana Code as follows;

IC 31-14-13-2.3 - Joint legal custody; finding required for award; factors considered in making award
Sec. 2.3. (a) In a proceeding to which this chapter applies, the court may award legal custody of a child jointly if the court finds that an award of joint legal custody would be in the best interest of the child.
(b) An award of joint legal custody under this section does not require an equal division of physical custody of the child.
(c) In determining whether an award of joint legal custody under this section 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 legal 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 legal custody;
(2) whether the persons awarded joint legal 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 legal custody;
(5) whether the persons awarded joint legal custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so;
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint legal custody; and
(7) whether there is a pattern of domestic or family violence.
As added by P.L.95-2009, SEC.2.

IC 31-14-13-2 - Factors of custody determination
Sec. 2. The court shall determine custody in accordance with the best interests of the child. In determining the child's best interests, there is not a presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child's parents.
(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) The interaction and interrelationship of the child with:
(A) the child's parents;
(B) the child's siblings; and
(C) any other person who may significantly affect the child's best interest.
(5) The child's adjustment to home, school, and community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) of this chapter.
As added by P.L.1-1997, SEC.6. Amended by P.L.96-1999, SEC.2; P.L.133-2002, SEC.24.

IC 31-14-14-1 - Parenting time rights of noncustodial parent; in chambers interview of child; rebuttable presumption for supervised parenting time
Sec. 1. (a) A noncustodial parent is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time might:
(1) endanger the child's physical health and well-being; or
(2) significantly impair the child's emotional development.
(b) The court may interview the child in chambers to assist the court in determining the child's perception of whether parenting time by the noncustodial parent might endanger the child's physical health or significantly impair the child's emotional development.
(c) In a hearing under subsection (a), there is a rebuttable presumption that a person who has been convicted of:
(1) child molesting (IC 35-42-4-3); or
(2) child exploitation (IC 35-42-4-4(b));
might endanger the child's physical health and well-being or significantly impair the child's emotional development.
(d) If a court grants parenting time rights to a person who has been convicted of:
(1) child molesting (IC 35-42-4-3); or
(2) child exploitation (IC 35-42-4-4(b));
there is a rebuttable presumption that the parenting time with the child must be supervised.
(e) The court may permit counsel to be present at the interview.
If counsel is present:
(1) a record may be made of the interview; and
(2) the interview may be made part of the record for purposes of appeal.
As added by P.L.1-1997, SEC.6. Amended by P.L.15-2004, SEC.1; P.L.68-2005, SEC.19; P.L.95-2009, SEC.4.

The distinction between parenting time and legal custody recognizes that each provides a different set of benefits and objectives. In dissolution 31-17-2-8 provides the eight factors that a judicial officer must consider when making a parenting time decision. These include such things as the child's relationship with the parents and other people who can significantly affect the child's well-being, the child's adjustment to the child's home, school and community, and most importantly the child's wishes. 31-17-2-15 provides that when considering legal custody a judicial officer must consider the fitness of each parent, whether they agree to the custody arrangement, and interestingly the wishes of the child. 31-17-2-17 provides that the person or persons awarded legal custody “may determine the child's upbringing, including the child's education, health care, and religious training.”

Thus, parenting time is about developing, facilitating and promoting the parent-child relationship while [legal] custody is an administrative process that can be undertaken from afar and, although not practical, without interaction with the child. The interesting aspect of 31-17-2-15 is that it provides for the wishes of the child. While married parents may also consider the wishes of their children in these matters most certainly do not provide their children the authority to decide whether to attend school, practice hygienic activities, or observe parents religious decisions.

Granting to parents an award of joint legal custody allows for input from two decision makers - two researchers, two contemplative minds, two subjective viewpoints - providing input into the decision making process. Much as a patient may seek a second opinion from a medical professional before undergoing a major procedure children should also be entitled to second opinions before their health, education, or religious determinations are made for them. Setting aside these matters, it is important for children regardless of who their legal custodians are that they maintain a healthy and meaningful interaction with each parent. This is the purpose of establishing parenting time.

There is a basic premise underlying the opinions in the legal community that stability and continuity of care is in the best interest of the child.[fn1] However, as applied there is often not continuity in care as most often children experience a decrease in the time they spend in the care of their fathers. Much of this is due to a political agenda that has influenced policy makers.

Research and my observations have demonstrated that sole custody and especially primary physical custody requests are associated with exacerbation or creation of conflict. Courts are reticent to award joint legal custody and Shared Parenting arrangements once conflict erupts. This in a way becomes a self-fulfilling prophecy. However, when the frequency of transitions is reduced, and high conflict parents avoid direct contact with each other during parenting time exchanges and shield their children from their conflict, the negative effects disappear. I contend though that conflict is a normal part of everyday life, and to completely shield children from normal conflict may be depriving them of an opportunity to observe resolution of disputes, healing and reconciliation.

The Indiana Parenting Time Guidelines provide guidance for the purpose of parenting time.
A child whose parents live apart has special needs related to the parent-child relationship. A child's needs and ability to cope with the parent's situation change as the child matures. Parents should consider these needs as they negotiate parenting time. They should be flexible and create a parenting time agreement which addresses the unique needs of the child and their circumstances. Parents and attorneys should always demonstrate a spirit of cooperation. The Indiana Parenting Time Guidelines are designed to assist parents and courts in the development of their own parenting plans. In the event the parties cannot create their own parenting time agreement, these guidelines represent the minimum time a parent should have to maintain frequent, meaningful, and continuing contact with a child.

When confronted with litigation involving child custody resulting from dissolution of marriage or a paternity action it is essential that you know the differences and purposes surrounding the legal and physical custody of the children. These two dimensions must be harmonized as decisions or agreements that recognize the child's needs and how these two facets of custody interplay with that are essential to the child's well-being and the probability that the decision will endure. Neither legal custody decisions or parenting time arrangements should be made in isolation. These considerations should be juxtaposed and integrated with each other.

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1 comment:

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