At Ciyou & Dixon, P.C., we see the sharpest divides between mothers and fathers over the trend toward joint physical custody.
It is true that some fathers want precisely equal time in physical custody because the number of overnights is indexed to child support.
And a small percentage of mothers do not believe that fathers are capable of ever being competent caregivers; even if a father could be, some mothers believe it is their God-given right to physical custody because they gave birth to the children.
We do not think these extremes properly focus the issue, at least from a legal perspective. Human nature and experience tells us that an infant forms a primary bond with but one person. The Indiana Parenting Time Guidelines nearly say so in indexing a non-custodial parent’s parenting time to frequent, but short-term, visits with infants.
However, the legal history seems to tell us a different story, namely that whatever the legal presumption is for physical custody, children will adapt and thrive. Our earliest law was effectively imported from England and allowed to organically develop.
It is here that women and children were once classified as property and “owned” by the men. As more-progressive thinking occurred with society transforming from rural to urban, this notion was discounted and replaced by the “tender years” presumption. At least as it related to infants and small children, the law favored mothers as caregivers.
Roughly corresponding with the Civil Rights Movement, this legal presumption was cast aside in favor of a gender-neutral standard. But, clearly, our practice and experiences demonstrate that mothers still obtain physical custody more often than fathers.
We believe this too presents an incomplete picture (i.e., the law is not gender-neutral), because mothers have been more likely to give up a career and education and stay at home and raise the children. This is what we believe largely accounts for the fact that mothers obtain custody more often than fathers.
Does the legal future thus hold joint physical custody as the next legal presumption? Maybe.
At Ciyou & Dixon, P.C. we believe the argument that will be made at some indeterminate time in Indiana, and throughout the United States, is that joint physical custody will be the presumption and a fundamental constitutional right. Ultimately, this will have to be decided by our highest court, the Supreme Court of the United States (SCOTUS).
SCOTUS passed ever-so-close to this legal issue on June 5, 2000 when it handed down its decision in Troxel v. Granville.
In Troxel, a grandparent visitation statute which had allowed the Troxels visitation with their grandchildren after their son committed suicide, was struck down by a Washington State Supreme Court and affirmed by SCOTUS. This is because, in the absence of unfitness or a similar showing, special preference is given to a parent’s decision to deny grandparents visitation in determining what is in his or her child’s best interests.
In Troxel, the SCOTUS reiterated the long-standing constitutional imperative that under the Fourteenth Amendment’s Due Process Clause, parents have the right to make the decisions about the care, custody and control of their children.
A logical development and extension of this legal reasoning is that this fundamental right is only afforded to parents in the context of divorce by the presumption of joint physical custody. Else, one parent — the non-custodial parent — will be denied this fundamental right.
Further, psychologists have trended toward recommending essentially a joint custody situation where both parents provide for needs of their children.
Perhaps your case is this case. Ciyou & Dixon, P.C. attorneys believe that in the optimal circumstances, parents should co-parent on some level. On the other hand, no matter how the law develops, there will always be legal exceptions in order to account for the complexities inherent in a family’s breakup.
If you now better understand the law, you are more equipped to help your counsel help you meet your objectives in domestic litigation. This blog post will have done its job.