New Indiana Legislation: New Joint Custody Bill

he Indiana General Assembly has a Bill pending that would change the presumption in custody cases to joint custody instead of sole custody in one parent. The digest reads as follows:

Joint legal custody. Establishes a rebuttable presumption that an award of joint legal custody is in the best interest of a child. Requires a court, if a party seeks to rebut the presumption, to consider: (1) the fitness and suitability of each of the persons awarded joint legal custody; (2) the ability of the parents to communicate and advance the child's welfare; and (3) whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody. Repeals a provision containing language that is relocated within the Indiana Code. Repeals provisions providing that: (1) the mother of a child born out of wedlock has sole legal custody of the child; and (2) a custodial parent may determine the child's upbringing.

Phyllis Pond sponsored this Bill. Her biography is found here. I am not sure what she hopes to accomplish with these changes in the Bill. I sent her an e-mail asking her this question but have had no reply.

I have written before about joint custody and I noted in one post that Minnesota has gone to this type of presumption.

I want to discuss the proposed changes. The new law would add the following:

Sec. 2.4. If a party seeks to rebut the presumption under section 2.2 of this chapter that an award of joint legal custody is in the best interest of the child, the court shall consider:
(1) the fitness and suitability of each of the persons who would be awarded joint legal custody;
(2) whether the persons who would be awarded joint legal custody are able to communicate and cooperate in advancing the child's welfare; and
(3) whether the child has established a close and beneficial relationship with both of the persons who would be awarded joint legal custody.

I see no definition of "fitness and suitability" and I feel safe in saying that litigation will focus on those three words. Lots of litigation. I see similar but somewhat lesser problems with "beneficial relationship" (I can see evidence easier to produce about the degree of benefit one each parent provides to the child.)

I do like (2). Therein lies my favorite defense to an unwanted joint custody. Forcing joint custody on parents who cannot communicate and cooperate in advancing the child's welfare will not result in less litigation or a better atmosphere for the child.

I find more interest in what is excluded from the proposed law than what it adds:

Sec. 15. In determining whether an award of joint legal custody If a party seeks to rebut the presumption under section 13 of this chapter would be that an award of joint legal custody is in the best interest of the child, the court shall consider: it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall also consider:
(1) the fitness and suitability of each of the persons who would be awarded joint legal custody;
(2) whether the persons who would be awarded joint legal custody are willing and able to communicate and cooperate in advancing the child's welfare; and
(3) the wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age;
(4) (3) whether the child has established a close and beneficial relationship with both of the persons who would be awarded joint legal custody.
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.

Again, I see "fitness and suitability" and I have made my comments on that already. I notice that the living in close proximity has been dropped as well as the wishes of the child. We have never had a pronouncement from our appellate courts about how much weight to give to the child's wishes and I think it does - sometimes - give rise to gamesmanship over those wishes. I find the removal of this provision as more of a curiosity.

On the other hand, getting rid of close proximity gives me a bit more of a pause. Joint custody gives an equal measure of control over the child's upbringing. I recognize that close proximity is relative but at some point I see distance being an obstacle to care of the child. How effective can a parent be if they live in California? It may be that Representative Pond does not recognize the numbers that are leaving Indiana for more prosperous areas of the country.

Generally speaking, my view has been that joint custody seems like a good idea but its reality is not so good. However, reading Representative Pond's proposal did give cause me to ask this question: Could it be that by creating a joint custody presumption will lessen custody fights?

I see it lessening custody fights only if the general public is made to understand what it means. I see nothing that indicates any proposal for educating the general public in the Bill. Considering how many of clients think Indiana presumes the mother should get custody, this is a real concern. Without the public knowing that there is presumption favoring joint custody then any desire to lessen custody fights will come to nothing.

It might be a good idea to see what the effect has been in other jurisdictions. I noted in an early post that Minnesota had a proposal for presuming joint custody. (There is another post here post e about Minnesota and joint custody.). I also have a post on Norway and joint custody that might lead us to making a more informed decision about this kind of change.

Perhaps some of my readers might have a different view about whether this would be a good change. If so, please be sure to leave a comment.