“I’m a father going through a divorce in Indiana. What does Indiana law say about a father’s rights in divorce?”
Ciyou & Dixon, P.C. attorneys write and teach extensively to contribute to the law and legal development and trends over time. A very common set of questions relates to a father’s rights. A simple web search demonstrates the volumes of material written on the topic from virtually every perspective.
Nevertheless, our father’s rights approach is far more basic. Our clients and trial experiences demonstrate that there are mothers who should have custody, fathers who should have custody, and parents who should share custody. Clearly, for a variety of reasons, mothers obtain custody more frequently than fathers. For fathers who seek custody, the law is developing.
What we do is help you understand a father’s rights from a historical perspective and, with this, make the best case you can make depending upon the orientation of your situation. An initial custody determination requires a different focus than a custody modification or issues that may be raised on appeal. Every father’s rights case is unique, and the Indiana law has not quite developed to the point where fathers are obtaining custody as frequently as mothers.
Historically, the earliest law was for the fathers, although based on the wrong reasons and policy: Women and children were the property of the husband. With the Women’s Suffrage movement, this began to change, and the “tender years” presumption gained traction; under this view, infants and young children were legally viewed to be better cared for by their mothers.
Ultimately, over the course of the last few decades, the law has become gender-neutral, presupposing that either parent could be the custodial parent. This is clearly the case in Indiana.
However, structurally, this gender-neutral presumption has not resulted in 50% of men and 50% of women obtaining physical custody because women have still stayed home and raised the children more frequently than men. This ultimately results in the children being bonded to a greater degree with mothers, and their best interests are often found by trial courts to be with primary custody in mothers.
The Ciyou & Dixon, P.C. father’s rights attorneys walk through this with the fathers who they represent in child-custody litigation. The reason is simple: this understanding allows us to work with you to develop strategies to work around the current status of the Indiana law. Perhaps the father has provided as much primary care for the child as has the mother. That is not uncommon in today’s home and workplace.
In addition, Ciyou & Dixon, P.C. is also always cognizant of the fact that each father’s rights case presents an opportunity to develop the law. Fathers should be as well. A case that has not yet been vetted, but is coming in the near future in some state, is whether any physical custody presumption other than joint is constitutional.
The United States Supreme Court has already begun this line of legal challenge. In Troxel v. Granville, it held that the Fourteenth Amendment’s Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody and control of their children. This case challenged a Washington state statute governing third-party visitation of children. As a next step, a powerful argument can be made that this fundamental right is only met with presumptive joint physical custody. This is not the law of the State of Indiana, at least not yet.
Fathers’ rights to the physical and legal custody of their children exist. However, they are not as inherently strong for custody for fathers as they are for mothers. Nevertheless, this should not deter you from seeking your rights and objectives.
Finally, the facts and circumstances of any given father’s rights case may create a strong argument that the father should have custody in the child’s best interests. At the end of the day, the court is ultimately concerned with the child’s best interests in determining custody. A skilled father’s rights attorney will help a father seek custody by striking the right balance of fact and law to make the best legal argument that can be made.
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