Wednesday, January 14, 2009

New Indiana Case: Swadner v. Swadner Part II (Joint Custody)

I dealt with the child's names and contempt issues of Swadner v. Swadner (PDF format) in Swadner v. Swadner Part I (Children's Names) . Today, I want to discuss the joint custody issue especially as it concerns whether the parents are "willing and able to communicate and cooperate in advancing the child‟s welfare." Considering that a Bill has appeared in the General Assembly for creating a presumption of joint custody, this case should be given a read.

My take on this case is we have a case distinguishing between parents who do not get along and those who should have joint custody.

The Court of Appeals describes the case law as follows (opinion at 10 - 11):

Therefore, trial courts must consider “whether the parents have the ability to work together for the best interests of their children.” Arms v. Arms, 803 N.E.2d 1201, 1210 (Ind. Ct. App. 2004). We are reluctant to reverse a trial court‟s grant of joint legal custody. Walker v. Walker, 539 N.E.2d 509, 512 (Ind. Ct. App. 1989). However, we will do so when the evidence indicates “a clear abuse of trial court discretion in that the joint custody award constitutes an imposition of an intolerable situation upon two persons who have made child rearing a battleground.” Aylward v. Aylward, 592 N.E.2d 1247, 1251 (Ind. Ct. App. 1992).

The fact that both parents may be suitable and capable legal custodians of their children does not make an award of joint custody appropriate. “Even two parents who are exceptional on an individual basis when it comes to raising their children should not be granted, or allowed to maintain, joint legal custody over the children if it has been demonstrated . . . that those parents cannot work and communicate together to raise the children.” Carmichael v. Siegel, 754 N.E.2d 619, 636 (Ind. Ct. App. 2001). Indeed, to award joint legal custody to individually capable parents who cannot work together “is tantamount to the proverbial folly of cutting the baby in half in order to effect a fair distribution of the child to competing parents.” Aylward, 592 N.E.2d at 1252.
The Court of Appeals then applies the law to the facts:
We cannot conclude that the trial court abused its discretion when it awarded joint legal custody of the children to Mother and Father. While it is true that Mother and Father disagree on whether E.G.S. should attend a private Christian school or public school, and about other matters as well, the parties have demonstrated their general ability to communicate and work together to raise their children. Each party acknowledges the other‟s love for their children and the fitness of each parent to care for the children. Moreover, the GAL recommended joint custody and parenting time in excess of the minimum established by the Parenting Time Guidelines. We cannot conclude that the trial court abused its discretion when it determined that the parties have the ability to work together in raising their children, and that joint custody was appropriate.
Notice that neither party made the other to be unfit or that they did not love their children.

No comments: