When a child is born out of wedlock or a divorce with children is filed, there is often dispute about who should have physical custody. Physical custody is the parent whom the court orders to have the most time with child. The other parent gets parenting time under the Indiana Parenting Time Guidelines (herein, “IPTGs”). At the initial determination, there is no preference for either parent. This blog sets forth five mistakes parents routinely make in child custody litigation and in subsequent modification litigation.
Maternal presumption: For a significant amount of time, the maternal presumption or tender years presumption was the actual law in Indiana and around the country. With the maternal presumption, the law favored mothers’ as primary caregivers to children. This was followed by the tender years’ presumption. Under this presumption, infants and toddlers were presumed to be best served in the care of their mother All of that has now changed, and the focus of child custody litigation is what is in the child’s best interests. Neither parent is favored. In this scenario, a father who has been the stay-at-home care giver is likely to obtain physical custody because that is what is in the children’s best interests.
A critical point is judges and the law favor permanency and stability for the children. That said, if you are going to have a preliminary hearing on custody in your case, it is key to skillfully advocate for custody at that time, because the parent who obtains the initial custody award has a leg up on the other parent if the litigation drags on because that is creating stability and permanency for the children that a judge may not want to change in a final hearing. While the statue on preliminary hearings indicates the initial (preliminary) orders are made without prejudice to a party, it does not play out that way with preliminary custody matters. Thus, if you have a preliminary hearing, you should be prepared to show why preliminary custody should be with you and litigate that matter as fully as you would in a final divorce or paternity matter. The takeaway is fathers can get custody and, if there is a preliminary hearing set, you should litigate your custody position as thoroughly as possibly.
Change with parent him or herself: Another situation that generates a fair amount of unnecessary litigation is when a parent seeks to modify because a significant change occurs in a parent’s life. For instance, presume a parent overcomes drug addition (which may have initially determined who obtained custody). However, a small-to-significant change in parent’s life has no direct causal connection in the children’s lives. There has to be more, and the parent must show his or her change in circumstances is coupled with something going on in the child’s life and it amounts to a substantial change in circumstances to make modification in the children’s best interests. The key takeaway is that a change in circumstances (even a substantial one) standing alone in a parent’s life, is not a basis for a change in circumstances with the children and in their best interests without tying a change in a parent’s life to a substantial change in circumstances how this ties to the children and their best interests.
Child turns 14: In the child custody statutes in the divorce and paternity acts, there are several factors that a judge may consider in awarding custody. One, only one, is the wishes of a child over the age of fourteen (14). Some parents believe--particularly with a same sex child—this is a basis to modify custody. This, again, is one of many factors the court considers. It has to be a substantial change and in the child’s best interests. The fact the child is the same sex, without more, is insufficient to modify custody, as both parents are presumed to able to take care of a child of any age. Without additional evidence, the parent may not be able to make she showing custody modification is in the child(ren)’s best interests.
Child expresses s/he wants to live with non-custodial parent: Closely linked to the child’s age is the child him or herself expressing to the non-custodial parent s/he wants to live with the other parent. This can be sufficient basis to modify custody if it truly is in the child’s best interests. In reality, many custody modification cases brought on this basis are because the child(ren) have more lax rules at the other parent’s house and this is typically not a reason the judge modify custody and find this to be in the child’s best interest. In addition, it is somewhat difficult to present the child’s wishes out in the evidence. Courts and trial judges for the most part do not want a child on the witness stand testifying about their parents. There are several tools a parent may be able to use to get the child’s wishes heard by the court, such as a Guardian Ad Litem, forensic custody evaluator, or in camera interview. If the child is expressing a desire to live with you, you should consider with your counsel how to have their voice heard, noting either parent cannot testify about what the child has told them about custody because this is inadmissible hearsay evidence.
A year has passed since the last custody litigation: Another misunderstood legal concept is a parent can bring a child custody modification after a year has passed since the last order. That is a rule that applies to modification of child support, but not to custody cases. This is an easy concept to master. A child custody action may be brought at any time if a parent can show a substantial change in circumstances. So, for instance, if the court were today to modify physical custody to dad, and the next day he had has a serious car accident because of being intoxicated with the child in the car, this may well be a substantial change in circumstances to show that modification the other parent is in the child’ best interests.
On the whole each of the bases of modification do not normally form a basis for successful modification. At the same time, there may be other issues that in conjunction with the prior reflect and support custody modification in the children’s best interests. This is where you need skilled counsel to help you weave the facts of your case into one that may show a substantial change in circumstances and modification of custody in the children’s best interests. Ciyou & Dixon advocates handle all types of modification cases across the state. This blog is written for general educational purposes. It is not a solicitation for services or legal advice. It is an advertisement.