In Part I of this blog post, we sorted out some of the dimensions of legal custody. In Part II, the topic shifts to the corollary, physical custody. In the not-to-distant past, at a time where father’s rights to time with the child had not grown to the level of recognition (although under the gender neutral, best interests standard) they are today, the custodial parent (more often mothers) had primary physical custody and a father received “visitation.”
Today, that is not the case, and Indiana’s trial courts are frequently hearing arguments advanced for joint physical custody, although the law is not there yet as to this being a presumption. Taken in its strictest sense, this would require day for day or week for week time. There are two (2) major structural issues with this equal shared custody in application.
The first is with infants and the state of current psychology and primary attachment, which directs more frequent, but less-time contact with the non-custodial parent (most often fathers). While there is significant research into the brain’s ability to effectively “rewire itself”, such as in the case of injury or stroke, there is not much evidence to suggest this could or would apply to primary attachment. Research, to date emphasizes the infants first few weeks and months of life will fundamentally shape who he or she is in adult life.
The second is with older, school-aged children. If the parents live any distance apart, and /or in different school systems, this can mean long transport times and weary children. For the most part, this is not in their best interests.
Specifically, even where there is joint physical custody that equates to day-for-day time with the parents, the ICSRG require one to be designated at the custodial parent for controlled expenses (those extra expenses, such as book fees or a winter coat, incurred by the parent who is more or less the custodial parent in fact and/or law).
Against these counter-indications for physical custody, there are a number of ways physical custody arrangements may be described that obscure the actual arrangement. These words, as with the components of legal custody, are not intended to do so, but are used to recognize very complex subtleties of the right to custody and parenting time.
Therefore, to be the most effective legal consumer, particularly in emotion-driven child custody cases, which impairs critical thinking, it is important to understand the types of physical custody and their general meanings; the two (2) most common forms from with permutations emanate are as follows:
Split Custody: These are rare cases, but nevertheless occur where one parent has physical custody of one child and the other parent has custody of the other child(ren). Courts, psychologists, and lawyers do not like this situation for the most part. However, under the overarching best-interests analysis, this custody arrangement makes sense in certain cases.
Shared Parenting: Where this is agreed to and/or ordered by the Court, it usually contains sub-language that indicates one parent will have the child more often than the other. In reality, at times, this is the same as, or similar to, primary physical custody in one parent and liberal, above Indiana-Parenting-Time-Guideline time in the other parent. However, this is different in the respect that it acknowledges that both parents play a vital role in the children’s upbringing.
A variant where distance is a factor (a parent has relocated is a good example) is observed and involves language indicating that the parties will have joint physical custody, “with Mother being the primary care-giver during the school year” and “Father bring primary care-giver during the summer time.” This is effectively parenting time where distance is the factor. However, it is also cognizant of the fact either could and is capable of being the custodial parent.
The take-away is that these are not mere words. Instead, they are words that reflect the inherent impossibility of what is hoped, anticipated or preferred–both parents living in close proximity of each other and effectively shared custody/parenting time. This arrangement sometimes provides the summer-time parent with more face-to-face hours in the absence of school.
On the other hand, this parent loses the benefit of interacting with the children in the educational environment. This may hamper his or her ability to be the most effective parent from the informational shortfalls that come from not being aware of school issues and dynamics.
The variants of the language are limitless. However, they are used as tools to get agreements done by recognizing there is more to parenting time than paying support or being akin to “visiting” his or her child. The rights and role of each parent to properly rear the children in their best interests are given important validation.
The legal landscape laid, the Indiana trial courts make these determinations initially by looking at all of the environmental factors. Thus, the initial custody award is easier to be made by the parents than by modification. This requires the moving party (the non-custodial parent) demonstrate a substantial change and custody modification is in the child’s best interests.
One of the most significant shortfalls Ciyou & Dixon, P.C. advocates observe in modification cases is where a parent who perceives the trial court made the wrong decision is merely attempting to remedy this by a subsequent child-custody modification action. While trial courts do hear these cases with a sympathetic ear, the law prohibits the judges from using and reconsidering evidence that occurred before the current custody order was issued (with some exceptions).
The other type of physical custody modification case that is unlikely to succeed, and one for which a litigant should avoid trying, is focused on the changes the non-custodial parent has made to get his or her life in order to be better positioned for physical custody. As a general matter, these speak more to that parent’s ability to have increased parenting time, not to custody modification. It is the child’s best interests that is the court’s consideration; these parental changes are typically not offset by the interruption to stability in a child’s life.
This frames Part II, physical custody in Indiana today. We hope you find this blog post useful to your education to be an informed and engaged legal consumer. Ciyou & Dixon, P.C. attorneys practice throughout the State of Indiana. This blog post was written by attorney Bryan L. Ciyou.