Recently, in our neighboring state of Michigan to the north, proposed some new legislation that could have a significant impact on the future of all domestic law cases, and could pose a trend in thinking, moving away from the norm “best interests analysis.”
Currently, in Indiana, the trial court is directed to determine which parent should have physical and legal custody; sole, primary, or joint, when there is a contested custody dispute arising from either a Paternity action (child born outside of a marriage) or a Dissolution action (divorce). There are 8 factors and Indiana court will consider, things such as who the child is primarily bonded to, the child’s age, siblings, extended family members, etc. Because the subjective standard lies in the hands of the court (absent an agreement by the parents), there are many parents today in Indiana with all sorts of custody arrangements and varying parenting time schedules.
Even when one parent is awarded primary physical custody, the other parent has parenting time, even if the other parent is potentially unsafe around the child, the courts will put in place several measures, such as supervised parenting time of short duration and/or frequency, or only phone contact, before it will order that the parent will have no contact with the child. These are extreme cases.
The United States, and Indiana Supreme Courts, have recognized a natural birth parent’s right to raise his or her child, and this recognition largely factors into why it must be the most egregious behavior of a parent before a court will terminate parental rights or parenting time/contact.
In Michigan, there is proposed legislation (it is not yet law, and it is uncertain if it will be passed into law at this time) that states that in a divorce or paternity case, the court must award joint physical custody, unless a parent is proven so unfit that his or her parental rights should be terminated. Many parents who maybe only have parenting time are rejoicing at this school of thought. Certainly when there are two fit parents, the child should enjoy a healthy and substantial relationship with both, and same should not be restricted merely because the parents live in separate homes.
The proposed legislation in Michigan eliminates all best interest factors and analysis. The question arises, is this the future of domestic law? There are certainly pros and cons to this type of law. One pro is when you have two good parents, any gender bias by a judge would be totally removed, therefore, there will be no more favoritism towards Mothers, which has been a historical problem has evolved significantly over the last couple decades, but still exists to some extent. A con would be that the parents live just far enough apart that the constant change of the house, getting to/from school activities, and friends becomes significantly impaired and places a huge burden on children, which may not be in their best interests, depending on the child. Not to mention, that the standard for not having joint custody rises to the level of such manifest unfitness as parental rights should be terminated. Certainly there are parents somewhere in the middle that maybe are not the best primary caretakers, but not so unfit to have their rights terminated, what is a court to do when it encounters these situations?
Time will tell if this law passes in Michigan, and if other neighboring states, like Indiana, adopt some of these ideals. Certainly this proposed legislation, if anything can start a debate about how courts should approach often tough custody decisions.
We hope that you have found this information to be helpful. This is not intended to be legal advice. If you have questions or concerns about your specific case, CIYOU & DIXON, P.C. can help evaluate your specific case. This blog post was written by Attorney, Lori B. Schmeltzer.