Law changes ever so imperceptibly every day. It has to in order to keep up with our society and afford each of us the right to achieve “life, liberty and happiness” through due process of law. The right to due process of law protects the family that is singled out for the most protection in the Constitution —there is a fundamental right of parents to raise their children as they see fit, even if other people or government believes otherwise or disagrees. This blog explores the key daily changes in domestic law and how they balance against the rights of parents to raise their children. Here are the top five trends you need to know for custody litigation in 2018.
First, perhaps the greatest shift in divorce and paternity cases and modifications of custody comes from a retreat from sole physical and legal custody in one parent. A key legal and psychological policy behind this presumption in the law was stability for the children. Most likely, for young infants, a single parent (more likely the mother) will have the majority of time for just infants. For toddlers and older children the trend—perhaps rooted in the fundamental rights of parents to raise their children, is some type of joint physical and legal custody. Legal custody speaks for itself. As to joint physical custody, depending on a variety of factors, it may range from alternating weeks to rotating days 3-2-2-3 or 5-2-2-5 day rotations with parents. Knowing this trend going into litigation allows you to know why it is in the children’s best interests or not and how to present your case to help you reach to your legal objectives in 2018 litigation involving custody.
A second, and profound, shift in custody is growing legal recognition of third-party custody. Although third parties have a higher burden to obtain “custody” of children, it is becoming common. For a variety of reasons, grandparents, neighbors, friends and complete strangers have accepted the task of raising the children of parents. Where this occurs for a long duration, the children become psychologically bonded to these third parties who they see as their parents insofar as meeting their needs for safety, security, and nurture. This plays out in a significant number of custody cases and sometimes later pits the parents against third parties in litigation. If this is or could be your case, whether you are the parent or a third party, you need to acknowledge the legal trend and plan for it in domestic litigation this year.
The third trend in custody is somewhat related to third-party custody. In Indiana, our governor, as well as governors throughout the United States and federal officials have raised to the spotlight the opioid epidemic. Even with crackdowns on abuse and illicit use of prescription drugs, making them much harder to obtain from physicians and the illegal market, those suffering from addiction have turned to heroin and meth to meeting the “cravings” from addiction and withdrawal. Where there are children involved, a number of family and friends are left with children or Child Protective Services removes them from parents. When and if either parent is fit to obtain custody, it is often a battle against the party who has cared for the children for months or years and ultimately comes down to what is in the children’s best interests. Parents can even have their parental rights terminated for adoption in third parties. If this is your case, a carefully constructed legal plan needs to be crafted to tell the story to support your custody position in litigation in 2018.
A fourth and unknown issue is the apparent “deal” in Congress to a tax overhaul bill—the first in decades. Families and their Children are the future; the implications are unknown from tax reform on families. Every competent divorce and paternity attorney, and certainly courts, know custody litigation is truly “complex” litigation and involves many areas of law and other professions (such as psychology). Trying to determine or knowing in advance the actual or potential tax consequences of the new tax bill as it relates to credits and deductions could make a significant difference at tax time. You should consider this question in divorce and paternity litigation in 2018.
A final and ever-growing legal issue involve same-sex marriage and life-partners who have children and what happens when they divorce or separate and custody becomes an issue. The key is the children’s best interests; this is what drives custody and parenting time issues. But more importantly, these cases in Indiana and across the country are providing unique opportunities to see custody explored through a different legal lens, which may have implications for family law as a whole and help refine for litigants, attorneys, and courts how to best protect children and meet their best interests when the family unit dissolves.
These trends are the news of the day. Law is not stale and set, but instead, responsive to the needs and trends of society. Be aware of these trends and how they may impact custody litigation you engage in for 2018. The best litigant is one who is engaged in the legal process to make better-informed choices. We hope this blog post assists you in this way. This blog is written by attorneys at Dixon & Moseley, P.C. who represents litigants in divorce, paternity and custody cases of all types throughout Indiana. This blog is written for general informational purposes only and is not intended as legal advice or a solicitation for services. It is an advertisement.