A concept Ciyou & Dixon, P.C. attorneys sometimes observe clients (fathers) struggle with is grasping that law reflects the social policy of the day in action (With this blog topic in the present time, it is the perception or expectation or reality that mothers are better suited for the role as custodial parents and do obtain awards of physical custody on a more frequent basis).
Most often, however, courts are tasked with enforcing the laws, not judicially re-writing them in any given society at any given time. The most known, and obvious, exception is where a law crosses a constitutional threshold as it is written or applied. In these cases, the trial court may refuse to enforce the law in a particular case or strike it down as unconstitutional.
A number of these cases may come to mind as ones that have reached the United States Supreme Court:
- Brown v. Board of Education, 347 U.S. 483 (1954) (state laws establishing separate public schools for black and white students unconstitutional).
- Roe v. Wade, 410 U.S. 113 (1973) (right to privacy under the due process clause in the Fourteenth Amendment extends to a woman’s decision to have an abortion).
- D.C. v. Heller, 554 U.S. 570 (2008) (Second Amendment right to possess a firearm is an individual right).
Again, in the vast majority of cases, trial courts (and appellate courts) hear the facts of cases and decide them within the limits of the statutes of the General Assembly, which includes child custody cases. When the law fundamentally changes, it is usually by an independent act of the General Assembly (or Congress) or because in practical application, the statutory law has unintended consequences, with which the General Assembly, by its constituents, disagree with resulting in subsequent statutory revision or repeal.
It is here a key point lies in the debate on fathers’ rights--to be on equal footing to obtain joint (or equal)i custody (equal division of days or weeks over a year) on the same statistical rate of occurrence. This would require a change in the current law to make joint physical custody the presumption and a corresponding change in the Indiana Parenting Time Guidelines and Child Support Rules and Guidelines.
Who decides? Is this the General Assembly or the courts? In fact, the answer provides what may be a powerful insight and course of direction for “fathers’ rights”. Is it a mix of influences, acts and societal pressures. Understanding how fathers’ rights to children and child custody have changed over time by the courts and legislative bodies helps inform the fathers’ right issue NOW: a hot-topic.
Namely, “What can fathers do to make joint physical custody the presumption in the law?”
The Common Law.
The answer to which branch of government(s), and at what level will ultimately decide may lie in history. Under English common law, women and children were effectively property or possessions of the husband-father. Generally, the husband-father’s authority to dominion, control and custody of the children was his right exclusively, except for cases of some extreme misconduct.ii
The question you may be asking at this point is “Why does English common law have any weight in this debate?” And if it does speak to the issue, “How is that fathers now obtain physical custody less frequently than mothers do in court proceedings?” Some simple answers: Sufferance and the Civil Rights Movement.
The reason to start with common law is because Indiana adopted common law in toto.iii However, it was not long before the view of women and children as merely possessions was held in question (contempt), and more progressive statutes started to erode this notion.
The Tender Years Presumption and Best Interests.
In the beginning, the law evolved by statutes and in the courts to favor mothers, at least with regard to younger children (i.e., infants and toddlers), and when and where that was not possible, a more general best interests analysis was used.
In fact, by 1881, as memorialized in caselaw, in the Reeves v. Reeves case, the Indiana Supreme Court espoused what later developed into the tender years presumption, holding “ . . . .it seems to us that the mother, unless she is shown to be an unfit person (which was not shown in this case), ought to have the care, custody and control of a delicate boy of the tender age of five years.”iv
Reflecting this retreat from the common law, and apparent preference for an intact family (maternal grandparents) unit over a biological father, in 1885 in Jones and Wife v. Darnall, 2 N.E. 229,v the Indiana Supreme Court reversed the trial court’s issuance of a writ of habeas corpus to return an infant child to his father after her mother died, focusing on the overall best interests standard:
“The cardinal principle relative to such matters is to regard the benefit of the infant; to make the welfare of the children paramount to the claims of either parent. The primary object of the American decisions is to secure the welfare of the child, and not the special claims of one or the other parent.”vi
Ultimately, the best interests standard, in some cases almost standing alone, evolved and gained favor over the tender years presumption in the 1940s through the 1960s. This is not surprising given the Civil Rights Movement and social and legal acknowledgment of equality.
Yet it wasn’t until 1966 that the Indiana Court of Appeals squarely addressed how to weigh a child’s tender years with the best interests. In Blue v. Blue, the Indiana Court of Appeals did exactly that.
On appeal, Joanne Blue argued that the accurate state of the law was the tender years presumption as controlling with young children in and over the best interests legal analysis, which the Court considered, and rejected in a nod to fathers’ rights:
“[Joanne argues] . . . there is a natural right in the mother to have the first privilege to nurture and care for her own young based upon the common experience that the child’s best interest are ordinarily served when assured the love, care and attention of its mother.
[Joanne]. . .concedes that Indiana adheres to the best interest of the child doctrine, but calls upon us to make a clear pronouncement and decision as to how important a role it must play in custody matters.
The general rule of law is the children’s welfare and best interests are the paramount and controlling considerations in all disputes over the custody of a child or children. The rights of the parents to such custody are not absolute and the disposition of such children is not controlled by hard and fast rules of law but by the exercise of sound judicial discretion of the court confronted with the problem.”
Gender Neutral Standard and Best Interests.
By the 1970s, the best interest standard was controlling and notions of the tender years presumption continued to be considered less and less by trial courts. Ultimately, the tender years considerations were removed by the General Assembly’s passage of a gender-neutral custody standard, directing courts to focus on the child’s best interests.
This is now reformulated and stated that there is no presumption in either parent in child custody litigationvii; presumably this addresses situations where there may be same-sex parents. This is the current law, and the Indiana Parenting Time Guidelines move somewhat to more equal time or anticipate it to some degree. But, due to the controlled expense variable, it still requires a parent to be labeled the custodial parent and provide a financial bump with this, even with equal time or true joint physical custody.
All of this background noted, “What is the potential next step for fathers’ rights?” It appears to be in a refinement (revolution?) of IPTG to a joint physical or equal time presumption, statutory joint custody presumption adopted by the General Assembly, or constitutional challenge in the United States Supreme Court on joint custody being required as under the fundamental right of parents to raise their children.
Presumption of Equal Time or Shared Physical Custody (Future?).
Ultimately, and as noted, what many fathers, individually and by organized groups, want the law to evolve to (in Indiana and in every state) is a presumption of equal time or shared physical custody on a day for day or week for week basis. This faces two (2) challenges that are beyond the scope of this blog.
The first is where there in an interstate relocation (the parents live in different states). That could not occur with the time and cost of travel. The second with an infant, as psychological research on bonding calls into question equal shared time with an newborn or infant. On the other hand, there is some fascinating research on how the human brain can rewire itself to address changes in the environment.
In the balance of cases (not infant or toddler or relocation), what most fathers want to know are concrete steps to be taken to move toward this point. There are three (3) foreseeable ways this might occur. The first is by the logical progression of the statutes, cases and judicial rules.
Under the Indiana statutes, in deciding custody, the court is to make a custody decision in the child’s best interests and “there is no presumption favoring either parent.” As it relates to what is now called parenting time (a/k/a “visitation”), the trial courts are bound by the best interests standard, but statutes merely state a parent shall be “entitled to reasonable parenting time.”
“Reasonable parenting time” is a fathers’ right battle cry.
In considering this, it is important to note, rules are relatively new in the mix, but this ambiguous statement of parenting time for a non-custodial parent should indicate why such rules might be necessary. For a long time, when a parent did not get physical custody, the courts across Indiana had very different approaches to “visitation”. Most followed the Marion County Visitation Guidelines, which provided the non-custodial parent with every other weekend and one night per week.
This changed in 2000, at which time the Indiana Supreme Court adopted the Indiana Parenting Time Guidelines and made them applicable to all custody situations. These have evolved over time, and contain vestiges of the prior visitation guidelines, but go on to give a significant lean to non-custodial parents (who are fathers more often than not, statistically speaking); they state:
“The Indiana Parenting Time Guidelines are designed to assist parents and courts in the development of plans and represent the minimum time a parent should have to maintain frequent, meaningful, and continuing contact with a child.”
More and more, and in conjunction with the Indiana Child Support Guidelines, which provide a mechanism to compute support for parents who have equal time, except for “controlled expenses”, parties agree to, or courts order, something more akin to joint physical custody. Notwithstanding, most cases do not reach day for day time, and mothers are typically still receiving more time with the children.
A continuing evolution of the Indiana Parenting Time Guidelines and Child Support Rules and Guidelines could be an area fathers who seek joint custody as the presumption may work within. Fathers may have an active voice here because these are refined from time to time, and do so with input of a wide cross-section of the citizenry, including many disciplines and with many parents’ perspectives.
The second approach would be to become involved in the Legislature and law-making activities. A bill could be passed to make joint physical custody the legal presumption. However, the adoption of the Indiana Parenting Time Guidelines, and their effect for over 10 years, it may signal a relegation of this area to the judiciary. This does not mean the General Assembly cannot do this, but there is some vesting notion by virtue of the passage of time.
However, the passage of a rule or statute by Indiana the Indiana courts or the General Assembly or any other state would only apply in that jurisdiction.
For joint physical custody to become a presumption across the United States, it would dictate the third course; that is reflected in the Troxel v. Granville case set forth above. In essence, a parent would challenge his (or her) trial court custody order (affording something less than joint physical custody or equal time) in state appellate courts and then seek certiorari to the United States Supreme Court.
If SCOTUS accepts such a petition (grants cert) it could entertain a challenge that anything less that equal time with the child of the marriage violates the fundamental rightviii to parent and is an unreasonable interference with the family unit by the states. However, it is almost certain the best interests standard would remain in force and effect and allow for judicial oversight and deviation from such a presumption.
If you are a father, or a mother, who seeks to have the law evolve beyond its present state, the ways to do so are set out in this blog. Any or all of these approaches might realize joint physical custody as a presumption in the future. Make your voice heard. This is the wonder of our system of law.
It is hoped this blog post gives you a historic perspective into how children and custody have been handled over time. In its most basic form, the best interests standard has always existed. However, it will be coupled with some presumption. Will that be joint physical custody in the future? This is an open question at this point.
This blog is written by Bryan L. Ciyou, Ciyou & Dixon, P.C., Indianapolis, Indiana.
i The caselaw in Indiana sometimes includes multiple meaning as to these terms. Joint physical custody anticipates equal time. However, this term is most often used where one parent is designated the custodial parent and not equal time. In addition, split custody generally references one child being in the custody of one parent an the other child in the custody of the other. For purposes of this blog, this joint physical custody is equal custody, day for day, week for week and month for month.
ii Drury v. Krogman, 120 N.E. 620, 623 (Ind.Ct.App.1918).
iii Ind.Code § 1-1-2-1.
iv Reeves v. Reeves, 75 Ind. 342 (Ind.1881).
v Jones and Wife v. Darnall 2 N.E.2d 229, 223 (Ind.1885).
vi This decision would likely be unconstitutional at this time in light of the impact of Troxel v. Granville, 530 U.S. 57 (2000) (a law that allows a grandparent to petition for visitation over the rights over parental objections unconstitutionally infringes upon the parents’ fundament right to rear their children).
vii Ind.Code § 31-17-2-8.
viii There are a number of other challenges, such as equal protection.