Tuesday, March 31, 2015

Indiana Court of Appeals upholds trial court’s application of Gender Neutral Standard in Child Custody and Child Support proceedings

On Monday 30 March 2015 the Indiana Court of Appeals delivered its opinion in S.B. v C.B. which was heard by the Honorable J. Steven Cox, Judge of the Franklin Circuit Court. The trial court transferred physical custody of the children to Father, modified parenting time, and ordered Mother to pay child support to Father. Attorneys for Mother on appeal were Andrea L. Ciobanu and Alex Beeman of Ciobanu Law, P.C. in Indianapolis, Indiana. They took a novel approach as to why the court was in error which, throughout the long history of child custody and support jurisprudence, has traditionally been the thesis of fathers’ objections which underpinned the Father’s Rights Movement.

Ciobanu and Beeman argued that “Father . . . has no ability to care for the children without significant reliance on others” and because Mother “has been the bread winner and maintained steady employment” throughout the children’s lives that the court erred in giving custody to Father and ordering Mother to pay support. Many of us have heard this argument made in court before, usually by the attorneys representing mothers. Child support proceedings would be prefaced by; “Mother has no ability to care for the children without significant reliance on others” and because Father “has been the bread winner and maintained steady employment” throughout the children’s lives Mother is best suited to provide care for the children, should be their primary custodian, and Father should be ordered to pay support for their care. It appears to me that the argument which Ciobanu and Beeman propounded to the Court is that when the standard that has been applied to men for generations is applied to women it is an error.

Mother and Father had divorced in 2006 but shortly after reconciled and two more children were born; the third in 2008 and the fourth in 2010. In 2013 they had an argument regarding text messages Mother had been exchanging with a male friend. Mother left the house, stayed at the home of her male friend, and was fired from her nursing job soon thereafter. The day after their argument, the parents agreed that Father, who was struggling financially, would relocate with the children to be close to Father’s relatives. Father and the children moved in with fraternal grandmother, and the children began attending public school locally. About three weeks after Father relocated with the children, he filed a petition to modify custody and abate child support. The trial court held a hearing on Father’s petition and issued an order granting Father primary physical custody of the children and awarding Mother parenting time but did not address Father’s request to abate child support.

At a subsequent hearing Father alleged that both Mother and Father were gainfully employed, that Mother and Father were earning $733 and $450 per week respectively, and that Father had been providing for the children without any financial assistance from Mother for over seven months. Father also reported that he was paying $140 per week in work-related childcare expenses and $43 per week in health insurance premiums for the children. The trial court ordered Mother to pay $315 per week -- 43% of her income -- in child support retroactive to the date of Father’s petition. Mother then appealed.

The panel of the Court of Appeals found that “the trial court had ample evidence from which to conclude a substantial change in circumstances had occurred since the initial custody determination and that a change in custody was in the best interests of the children.” In regards to child support payments the panel found that in “light of [the] evidence, and because the law is clear that a trial court may order support retroactively to any date from the filing of the petition to modify support, we conclude that the trial court did not abuse its discretion in ordering Mother to pay $315 in child support, retroactive” to the date of Father’s petition.

In Indiana the maternal preference is dying as quickly as efforts at a constitutional amendment to prohibit same-sex marriage and other social inequities that had long stood as the ethos of our prejudicial community. Younger judges, and more often female judges, are leading this change in attitude that mothers will no longer be handled tenderly and receive preferential treatment. Mothers and fathers are expected to provide nurturing, care and support for their children and the one who is most fit or circumstances will best contribute to the children’s well-being is going to receive the responsibility of providing for the children more of the time.

Judicial officers who have yet to embrace this modern concept of gender equity should be adequately informed of this through the effective presentation of evidence with corresponding commentary. It is not improper to question a judge’s potential or demonstrated bias.

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