Custody and second hand smoke

A short, quick post about a new Indiana Court of Appeals case. With the computer problems from last week, I got way behind in my reading. Timothy P. Heagy v. Kelly K. Kean (PDF format) came down on April 17.

Father wanted custody because mother smoked around child in violation of court order. From what I read, whether the child had health problems which smoking aggravated was not really clear. My reading is that the father was on anti-smoking crusade:

Nevertheless, Heagy requests we take a “strong position” on this issue:

The time has come for the Court to publicly recognize that [second-hand smoke] has severe adverse health consequences on children in Indiana. In keeping with Indiana’s well-established principle of determining what is in the best interests of its children, the Court should take a strong position and declare that [second-hand smoke] is a clear and present danger to the health and welfare of Indiana’s children. The Court should also state explicitlythat exposure to [second-hand smoke] is a factor sufficient to warrant a change in custody.

We leave the decision whether to modify the factors in Ind. Code § 31-14-13-2 to the Indiana Legislature. The factors already provided by the legislature for determining whether a modification of child custody should occur would have permitted the court to modify custody of E.R.H. if there had been a significant change in E.R.H.’s health....

I think we do not explain very well the interplay between the Indiana General Assembly (the people writing our statutes) and the Indiana courts (the people interpreting those statutes). Last year, I had a grandparent's visitation case. After entering judgment, the great-grandfather asked the court directly about how they could get visitation. The commission quite nicely told them to talk to me and I would explain why they could get visitation. I had done so already. I am still uncertain whether I did not explain it well enough or if he just did not trust what I told him. They later took their business to another attorney, so I am betting on the latter.

Getting Indiana courts to do what Father wanted in this case is pretty much impossible. Indiana courts do not like changing the legislature's creations. A crusader like Father in this case needs to look to the General Assembly for changes to the dissolution statute and not Indiana's courts.