Sunday, January 6, 2008

Family Law: Mother's Rights, Father Rights in Indiana

I see a lot of traffic coming to this blog searching under the topics of father's rights, or mother's rights, or non-custodial parents rights, or custodial parent rights. I am sorry to disappoint those people that there are not any posts that explicitly focus on those topics. As for writing about mother's or father's rights, you will not find any post explicitly about those topics on this blog.

Why no posts touting father's rights or mother's rights? I know I could probably get more attention to my blog and probably increase my client base. I do not do this because I think talking about father's rights or mother's rights falsifies Indiana law.

Indiana does not look at whether a mother or a father has a right to custody except for a small exception under Indiana's paternity law. About that, see my article here. Indiana law interests itself in the best interest of the child and not the interests of the parents. That rule applies to child custody, child support, and parenting time (visitation).

Fathers get custody of their children. I have had two cases like that this past year and a third pending. They got custody because we were able to show the child's best interests were better served by the father having custody.

Most mothers do get custody. Fathers do not always want custody. I would say the majority of cases settle with the father agreeing that the mother should have custody.

Nor am I so naive not to know that some judges favor one sex over another. A former judge in another county consistently favored women even when the evidence did not support the mother. I know of another judge, male, who disfavored a mother because she admitted to smoking one joint at a birthday party. Attorneys know these things. There are tools available for dealing with them - choosing which court to file in, motions to change venue, appeals. What we cannot change is the rule of the child's best interests.

I refuse to limit myself just to men or to women. To do so means I must ignore the best interests of the child. I prefer my clients to be the parent who will be in the best interests of the child.

I am even sorrier for those seeking answers to their questions without finding them here. Some would find more if they looked further into this blog such as under the topics of child custody and paternity. There are links to all the topics I have written about down the right hand side of this blog.


FD39 said...

As a father starting preperations for a what will most likely be a long battle over custody of my children, I want to say thank you!! Your statements are more than merely accurate they are truthful! I have done a lot of research and preparing for this venture and although the outcome is never certain, I will always feel that I, as a concerned and conciencious father will have done everything I could to help insure the well being of my children. I also wanted to say I appreciate your cander and honesty and hopefully this blog will help others who are looking to start this battle, realize that while there are obvious emotions involved regarding the opposing parent, they are not the ones you are fighting for! It is and should always remain, about the children. Win or loose the children will always stand a better chance or growing up well rounded and emotionally stable so long as they know that they have one parent who is healthy and puts their needs far before their own. Thank you again!

Anonymous said...

Thank you for doing this blog.
I have been able to read up on a few of your topics...and yes...I was one of the ones who also searched for a specific category.

It's interesting you state that you don't blog on specific gender-related custody issues (understandable -- and I totally respect that), however, I must comment that it seems Indiana Law automatically ignores one half of the child's parents immediately and without question by stating that a single mother automatically has sole custody of a child (legally).

That immediately eliminates the father from the equation and does not seem in the best interest of a child, when a law specifically states that only ONE parent has sole "legal" custody at birth.

Based on that inequity (my perception), then you can imagine there would be folks searching for some insight into how a man (already proven to be a stellar father) can obtain, at the very minimum, Joint Custody, so that they don't have to beg to see their child every week...or for special occasions, etc....only to have the mother constantly coming up with excuses at the last minute as to why the child cannot be with the other parent.

The epidemic of single parents in the state of Indiana is appalling.
To think that mother's automatically -- by state statute - - are defined as having "legal custody" of the child at birth -- without any regard to what is truly in the best interest of the child at that time - - is equally appalling.

Realistically, it is a fact that many, many mothers use "motherhood" as a means to earn a paycheck, keeping fathers at bay and going for broke on the maximum allowed by law.
(the case I am using is a woman who divorced her husband and already receives support for their child together, then has another child out-of-wedlock and now "earns" three times the amount she is getting for the first child!! Meanwhile, not allowing the father to participate in the child's life barely at all. This father already has Joint Custody of another child, so if it's good enough for the first child, why not the second? I cannot see any difference. Father has the same stable and steady job, while mother loses hers and uses her new found freedom to draw a free paycheck.)

In any case, I appreciate your postings and will look through the site more in the future.

Thank you again for taking the time to provide some information to the public.

Sam Hasler said...


I have to take issue with you about terms. I was quite specific that the exception applied only to paternity cases and applying the term family law to the subject of paternity cases is quite wrong, if not misleading.

I also am left wondering if you linked to the other article of mine. I have been questioning some of common wisdom about blogging - that it is to link to other articles is the purpose of a blog article. I have been noticing little of this. I am beginning to think that people expect one stop shopping and do not look for more information.

No, I do not know that is a fact that many mothers use motherhood as a paycheck and neither do you. One case does not prove many. (And the father has it in his means to change mother's behavior by enforcing his rights.) I do think there are just as many custodial fathers as there are custodial mothers who do not want to go from child support payees to child support payors.

As to whether Indiana's paternity numbers are higher than the national norm (and remember those cases started fall in Nineties and started to rise again in the past nine years - nationally). I do not know what numbers you might call them appalling. Personally, I think in this day and age it is appalling that anyone does not know how to obtain and use birth control. Perhaps we should be appalled at Indiana's educational system?

That you are appalled by Indiana's paternity statute on presuming custody, says to me that you have not read the article where I specifically discuss that statute. Paternity cases present a social problem - men getting women pregnant and leaving them. Which then puts the child in the position of a burden to the state government. The state presumes the mother has sole legal custody at birth because for all too often the father is a stranger to the woman. I think if you had read the earlier article, you would have known this and the exceptions to the presumption.

That said, I have been making on this blog that I think the old paradigm of the father-as-stranger-to-mother is changing to where father and mother have been in a long term relationship and not married. I do not see the legislature changing the statute that offends you - it has made provision for that kind of relationship. I do think that the General Assembly will have a problem sometime as it continues to promote marriage over cohabitation.

Do remember that if you do not like a statute, the remedy to campaign your state legislators for a change.