The Indiana Parenting Time Guidelines are presumed to apply to every custody case (paternity or divorce). These Guidelines presume one parent will have primary physical custody and the other will have overnight parenting time. Typically, for a child above three (3) years of age, this is one night during the week, every other weekend, alternating holidays, and half of the summer. However, the national trend toward joint parenting time or joint custody has resulted in court routinely extending the mid-week night to overnight if the parties agree or the evidence shows it is in the child’s best interests. However, there is a significant movement to joint physical custody or equal time. This blog explores three key pieces of evidence that may be presented at trial to cause the court to deviate from the presumptive parenting time to award joint physical custody.
The first key is showing evidence of a pattern is past joint care and equal sharing of parenting in the marriage or paternity cases. The traditional model of a mother staying home with the children while the father slaves away at work to provide for the family is no more. Often couples enter divorce or paternity litigation already having been joint caregivers. Thus, it is easier to make the argument that joint physical custody is in the child’s best interests because that was what was occurring before the divorce filing or paternity action. This is where good lawyering comes into play. Given activities, year-round-school, and atypical work schedules (including working from home), it may take working with your counsel to exactly determine if you had joint parenting before and if worked for the child and should work now. This may take going through a week, month or year and then obtaining records (sign-in sheets) or other evidence (witnesses) to show past (peaceful) co-parenting that by nature was in the child’s best interests. It is logical for a judge to rationalize if it worked then for the child, it must be in their best interests now.
The second key piece of evidence to adduce at trial is a plan where joint physical custody will work. Clearly, schedules and living arrangements change on separation. Thus, presupposing you have the benefit of joint care-giving working in the past (or even if you do not), you need to show how it can work now. There is no set way to do this other than to model what others have done and tailor it to show joint will work now with the parties’ schedules and be in the children’s best interests. There is no set way to do this, but common equal parenting schedules rotate week-on, week-off or rotate on a daily schedule, such as 5-2-2-5 or 3-2-2-3. These may vary by drop-off and pick up times to accommodate school or work schedules. They may have “escape” or “default” provisions where the other parent gets more time in the event of a foreseeable and/or reoccurring event, such as a work trip. The point is to demonstrate to the court what you are asking for will work for joint parenting and is in the child’s best interests. Where their weaknesses in this plan, skilled trial counsel can help you develop a trial strategy to minimize the problems with the joint parent schedule and evidence why it will work and is in the children’s best interests.
Some parents lose sight of the third key piece of evidence that may carry great weight with the Court in ordering joint physical custody—what the children want. While it is hard to force a teenager to live with a parent he or she does not want to live with, which is why Court’s give their wishes more importance, younger children who want to share equal time with their parents may have a significant piece of importance with the trial court judge. Psychology and sociology evidence children get significant benefit from being cared for by a same-sex and opposite-sex parent. So, if they want to share time, the court may give this significant weight. The big question is how are the children heard? Most attorneys and judges consider calling a child as a witness a taboo topic—kids being caught between both parents and causing emotional stress. However, Guardian Ad Litem or custody evaluator may interview the child and testify as to their wishes for joint care. Although this is a highly complex area of domestic and paternity law involving many strategic considerations, it is possible for a child of sufficient age to be heard by a GAL and he/she testify as to his/her desire for joint physical custody and why it is in the child’s best interests.
There are two takeaways from this blog. First, obtaining joint physical custody is possible with counsel who can help you properly show the court in the evidence why this is in the child’s best interests. Second, there are tools to have a child’s voice heard in a healthy way in child custody litigation. With the right trial theme and development of evidence, most litigants can make a strong case for joint physical custody. This blog was written by attorneys at Dixon & Moseley, P.C. who handle domestic cases of all types throughout the State. It is written for general informational purposes only. It is not a solicitation for services or legal device. It is an advertisement.