In today’s world, fathers are more active in their children’s lives than ever. In households where both parents work, some fathers are their children’s primary caregivers. However, in the unfortunate situation where a divorce occurs, many fathers feel “doomed” and have the belief that mothers always get “custody”. This blog explores what “custody” means and provides key tips for fathers who seek custody in a divorce.
The point to start with is an understanding of both “physical” and “legal” custody under Indiana law. Physical custody is given to the parent who is identified as the primary care-giver and when this is the case, the other parent is given parenting time under the Indiana Parenting Time Guidelines. However, the trend is moving towards more joint physical custody, such as a rotating schedule of days with parents, like 5-2-2-5 or 3-2-2-3. The court can order this if it is believed to be in the children’s best interest. There are Constitutional arguments that joint physical custody should be included within the fundamental right to parent, but the law has not evolved to this point. The second type of custody is legal custody, and involves decisions pertaining to the child’s health, education, and religious upbringing. Legal custody, like physical custody, may be sole or joint.
With an understanding of what “custody” means under Indiana law, and knowing all custody decisions must be in the children’s best interests, this blog turns to three tips for fathers who seek custody. First, and perhaps the most important, is the evidence to support your position that you have been involved in your children’s lives as much as the mother—or more. This can help provide strong support for your joint or sole custody position at trial. Most parents struggle with establishing this evidence because they simply do not think about every day, week and month of the time they spend in their child’s life. Sources of evidence to establish this vary greatly, but common examples include the following:
- Medical and dental records to show who brought the child to the doctor.
- School sign-in sheets and other records, such as attendance at school functions and parent-teacher conferences.
- Photos: These can speak a thousand word as the adage goes and a deeply involved father will have many of these to work with counsel to weave together the story of why he seeks sole or joint physical custody.
Recognize these are but a few, and certainly not the only sources of evidence. These should help you start to think how you can make your argument in court. The initial custody determination is gender neutral, meaning neither parent is favored. So, strong evidence, coupled with your testimony about your parenting, is key.
The second tip is to have a workable sole or joint custody plan. Merely establishing you seek (and should have) sole or joint custody is not sufficient. You have to show in the evidence that your plan for custody is workable. This may mean you obtain a home in a nearby school district, so the children can easily be transported to and from school. Just because you want a certain custody arrangement does not mean you will get that arrangement. You must be able to show the court this will work and does not leave the children exhausted because of the times of drop offs and pickups and/or result in long periods of time in the car each day or week.
The third tip is to remember that the process of divorce is hard and so is the objective of your sole or joint custody. Challenges will arise after the divorce is filed and until it is finally decided. Where many parents do irreparable harm to their case is when scheduling conflicts occur; they result in a terrible and threatening text to the other parent (or email). More and more cases are being won or lost on texts, emails, or phone recordings. In the face of such a conflict, do not just react and send a nastygram. Talk with your attorney and take a balanced approach to handling the situation at hand. This is very hard, but key for your custody case. The court tends to look at awarding custody to the parent who is most willing to facilitate the non-custodial parents’ parenting time. Be that parent. Remember one damning text from you sent to the mother can easily overshadow the fact that you are the parent who should have custody in the children’s best interests. So don’t send these or have these conversations, as they can only hurt you, your case, and most importantly, your children.
This blog is written by attorneys at Ciyou & Dixon, P.C. who handle domestic cases of all types throughout the state. This blog is written for informational purposes only and is not intended as legal advice. It is an advertisement.