"Doesn’t the mother of the children always get custody? What about the father’s rights?"
The answers to these two queries could fill book after book. These are simple questions with hard, complex answers. Ciyou & Dixon, P.C. child custody attorneys have spent hours, days, weeks, months — perhaps years — wrestling with these questions.
Anecdotal evidence does suggest that mothers do, in fact, obtain child custody more often than fathers. However, this is not because mothers necessarily have a leg up on fathers because they give birth to the children or because there is some favoritism in the law. In fact, current child custody law is gender-neutral, and the parents begin on a level playing field.
We believe the answer goes much deeper. As child custody lawyers, we spend a tremendous amount of time with our client embroiled in custody disputes, either a mother or father, trying to sort this out and answer properly and fully answer this matter. This is to the end of developing the best custody argument.
In our journey with clients, we do this by first educating them about the law, to help them help us. The more you understand the law, the better-equipped you are to help us distill what is really going on and why you should have custody. The place we begin is with explaining the two types of child custody under Indiana’s divorce statutes.
The first is physical custody. This is where a child lives and sleeps. The other is legal custody. This refers to major life decisions made for the child, such as where he or she will go to school (public versus private, etc.). Both physical and/or legal custody may be ordered by the court (or agreed to by the parties) to be solely with one parent, or joint between both.
With physical custody, the parent awarded primary physical custody will have the child living in his or her household for the majority of the time. As a general rule, this residence is what is used to determine which school the child will attend. The other parent will be awarded parenting time (which used to be referred to as visitation).
The Indiana Parenting Time Rules and Guidelines specify the typical time that the non-custodial parent will have with the child. It is indexed by age and includes more frequent, shorter visits for infants and toddlers. For older children, the parenting time is generally every other weekend, one night during the week and one-half of summer break, with the holidays alternating. This averages out to 98 overnights with the non-custodial parent.
With joint legal custody, both parents consult each other to make major decisions about the child’s health, education and welfare. For instance, if each parent has strong religious convictions, one being Catholic and the other Muslim, these parties probably are not strong candidates for joint legal custody. This does not mean it should not be considered or tried out, but the probability of success is lower.
It is critical to understand that legal custody has nothing in connection with ordinary decisions on which parents routinely disagree. An example is if one parent believes in a vegetarian diet and the other does not. It is probable that the child will be eating hamburgers and French fries at one home and consuming whole-grain cereal and soy milk at the other. This is not a matter connected with legal custody. On the whole, joint legal custody is not typically a battleground, as is too often the case with physical custody.
Now the work begins, and the difficult answers to the questions begin to emerge through close consultation between the child custody attorney and his or her client to develop the relevant facts. To use an old adage, “the devil is in the details.” Specifically, custody must be determined by the court to be in a child’s best interests.
In the somewhat-dated, but still traditional, model, the mother gives up her career after the children are born and is their caregiver until school begins. Due to the sheer amount of time spent between mother and a child, this forges a primary bond and often is dispositive. A different custody arrangement on divorce is stressful and unsettling to the children. For this reason, a court may find it to be in their best interests that custody be solely with the mother.
Nevertheless, the modern family often is anything but traditional. Both parents may work, offsetting these considerations. In other circumstances, a parent may have an alcohol, drug or mental-health issue that overcomes every other consideration. Further, if a parent is convicted of domestic violence, the law may require supervised visitation, precluding custody in the abuser.
Ultimately, a court must consider everything that is going on with the family and determine what is in the children’s best interests in determining custody. This is the lynchpin of the case. However, it is not an easy task to make your best case. Any given fact may cut either way and tilt the balance for or against a parent, depending, in part, on an effective child custody lawyer.
Take an allegation of abuse or neglect that is sometimes made by a spouse in the course of litigation. If your custody lawyer can establish that this did not occur, this may speak to the other spouse’s mental stability and inability to be a custodial parent. If it did occur, this may erode the accused parent’s custody position. This is how facts may turn the legal tide for a parent in a child custody dispute.
In this mix, and an angle your divorce attorney may play depending on your custody position, is the trend of courts, parties and psychologists and sociologists toward joint custody. The day will come when the United States Supreme Court agrees to decide these issues. The older model of sole physical custody in one parent and visitation to the other is passing.
At Ciyou & Dixon, P.C. we work with our clients to help them meet their custody objectives by identifying all of the factual variables that may weigh into their child custody position. This is not a cookie-cutter lawyer approach, nor the least expensive. But when child custody is in the balance, this is our approach and the one we believe best suits our clients’ legal needs. If we share similar views, perhaps Ciyou & Dixon, P.C. child custody attorneys may assist you.