Friday, February 13, 2009

More News On New Indiana Joint Custody Bill (HB 1044)

I have a letter from State Representative Pond, the sponsor of HB 1044 (which I first noted in New Indiana Legislation: New Joint Custody Bill). My apologies for the delay in getting this onto the blog. I also have excerpted posts from two other family law blog from outside of Indiana that I think give us some food for thought; first as to the effectiveness of a joint custody presumption and a possible alternative.

I asked for an explanation of what need this legislation is to remedy. I would like to comment that I doubt very many people in Indiana think the mom stays at home while dad goes to work. Indiana's economy has not allowed that in the past 30 years, if not longer. I would also comment that Indiana law does recognize joint custody as "as sharing authority and responsibility for major decisions in the child's life." I would also say that between our custody statutes, Parenting Time Guidelines, and Child Support Guidelines, Indiana law has done a lot to not make the non-custodial parent merely a visitor and it is even now left to the courts to decide if joint custody is appropriate in each case. I simply do not read an answer to my question that gives any empirical evidence that this change will accomplish the stated goal of improving the lives of Indiana children.



January 20, 2006

Samuel Hasler

1106 Meridian Plaza Suite 251

Anderson, IN 46016

Dear Samuel:

I went over your question with Rep. Pond. Here is her response:

Today, many Indiana mothers have a full-time career which does not allow them to be home 24 hours a day. The term "Joint legal custody" should be recognized as sharing authority and responsibility for major decisions in the child's life.

House Bill 1044 would establish a rebuttable presumption that an award of joint legal custody is in the best interest of the child. To prove assuming joint legal custody would not be in the best interest of the child the court must 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 and willing to communicate and cooperate in advancing the child's welfare; and
3. Whether the child has established a close and beneficial relationship with the both of the persons who would be awarded joint legal custody,

The court's decision should include any history of violence by either parent. As author of HB 1044, I believe it's time for Indiana to make a public policy statement that joint legal custody is in the best interest of the children. It is no longer fair to assume that the mother stays home 24/7 and the father is the bread-winner who stays away from the family. It also shouldn't be assumed the father is less caring and nurturing than the mother. That is a false assumption.

It is time Indiana stops making the noncustodial parent (usually the father) simply a visitor in a child's life. Although the parents are divorcing each other, the children shouldn't be divorced from either parent unless there are valid reasons, which the courts should decide.

Sometimes the Deadbeat Dad is a Mom comes from a New York lawyer writing in
"How can we use this information to help reduce the “deadbeat” category altogether? The answer may lie in the concept of joint custody and visitation. Statistics show that when non-custodial parents are more involved in their children’s lives through joint custody and visitation arrangements, they pay all or some of their support obligation nearly 85% of the time. Non-custodial parents who do not share custody or visitation pay support less than 62% of the time. Absent circumstances of actual domestic violence, drug abuse or other such “red flags” where joint custody and visitation may not be appropriate, the custodial parent would be well-advised to encourage the non-custodial parent to be as involved with the children as possible. In such a scenario, the custodial parent would benefit, the non-custodial parent would benefit, and most importantly, the children will benefit. Where else in this economy will you be offered the opportunity to engage in a win-win-win situation?"
Do we have this kind of statistical information for Indiana? I do not know. Knowing the information collected here, I doubt that we have this information easily available, if at all. I will offer up this observation: nothing keeps the soured feelings of divorce flowing as well as non-payment of child support. That rancor influences the relations between parents and the parents and the child.

Minnesota Divorce and Family Law blog notes what the Minnesota legislature is doing in its article, Study Group's Report on Joint Physical Custody Presumption:
"The study group has issued its report with six non-comprehensive, non-unanimous recommendations. The study group has recommended that the Legislature do the following:

1. Fund the collection of data regarding custody arrangements and parenting plans over several years;

2. Promote cooperative agreements in future custody and parenting legislation;

3. Continue to provide the family court the ability to consider individual needs of children and families in making custody and parenting decisions;

4. Consider the essential importance of the safety of children and parents;

5. Amend current statutes to make it clear that there is no presumption for or against joint physical custody (except for the rebuttable presumption against joint physical custody in cases involving domestic abuse); and

6. If there were a presumption of joint physical custody in the future, that the term be clearly defined, and its relationship to the determination of parenting time also be clearly defined."
Of these six, I think 2 and 6 need serious consideration here also.

Here is what I wrote in New Indiana Legislation: New Joint Custody Bill about Minnesota:
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 think we might want to think about what appears to be Indiana's plunging into a presumption when another state that favors joint custody takes a more cautious approach.

I suggest that anyone with an opinion leave a comment. Even those who subscribe to e-mail newsletter from here (and for those reading me regularly, you should sign up for the e-mail alerts).

As for me, I think it is an admirable idea that has not proven its need to me. If anything, I would ask why the General Assembly does not require - and fund - parenting classes for all divorcing parents.

For those interested, I found out that Yahoo hosts a group supporting the bill. You can find that group here.

If anyone has an opinion, then leave a comment on this blog.


Anonymous said...


I think it's common sense that the rebuttable presumption be that joint custody (legal and physical) is in the best interest of the children. Our (and most states) family court system seems to be geared toward the small percentage of "bad parents" and not the overwhelming majority of "good parents" that are affected by these laws.

When I wanted to fight for joint physical custody of my children, my attorney told me bluntly: "Who's kids do you want to put through college, yours or mine?" He told me I'd probably spend 20K+ and still have no gaurentee I would succeed.

In my own case, I was able to negotiate joint legal custody and additional parenting time (what amounts to about 37% of the time.) I also moved into the same neighborhood to be close to my children. While this co-parenting continues to be difficult, the alternative is not in the children's best interest.

Children from fatherless homes account for:

*63% of youth suicides. (Source: US Dept. of Health & Human Services, Bureau of the Census).
*71% of pregnant teenagers. (Source: US Dept. of Health & Human Services)
*70% of juveniles in state-operated institutions come from fatherless homes (Source: U.S. Dept. of Justice, Special Report, Sept 1988)
*85% of all children that exhibit behavioral disorders. (Source: Center for Disease Control).
*80% of rapists motivated with displaced anger. (Source: Criminal Justice & Behavior, Vol. 14, p. 403-26, 1978).
*71% of all high school dropouts. (Source: National Principals Association Report on the State of High Schools).
*75% of all adolescent patients in chemical abuse centers. (Source: Rainbows for all God`s Children).
*85% of all youths sitting in prisons. (Source: Fulton Co. Georgia jail populations, Texas Dept. of Corrections 1992).

Why wouldn't it be in the children's best interest to start at 50/50 parenting? As the statistics I stated above cleary indicate, involvement from both parents increases chances of healthy growth of the children. Why shouldn't both parents be assumed to be qualified to work together to make decisions for the best indterest of the children? I also fail to see how 3 hours a week and every other weekend promotes meaningful parenting.

As it stands now, our laws put huge barriors in the way of children of divorce enjoying the right of having two active parents. Current laws have created a system where parents "fight" to "win" custody. I believe this new legislation is a step in the right direction and if passed will eventually lead to less conflict between divorced parents. That's not good news for the billion dollar divorce industry, but it's great news for the children.


David Edgar
Fishers, Indiana

Sam Hasler said...

Actually, anonymous, I have seen several good reasons for not presuming in favor of joint custody but one great one. This presumption would only be of any importance in contested cases. As a former partner once said about joint custody - the people are gettign divorced, they cannot agree on anything, and we should expect them now to agree on parenting their children?

Put anotehr way, and I do not mean to disparage you or your experience, you omit any mention of why your former wife did not agree to joint custody. I have ran across a piece from Pennsylvania that I will be writing about in the next week, but the point is that contest custody cases should be evidence that the parties cannot cooperate to raise the children and therein lies the essential element of joint custody.

I take a much more serious view of your contention that "our laws put huge barriors in the way of children of divorce enjoying the right of having two active parents." The parenting Time Guidelines are much more than the visitation schedules you make them out to be. They are also considered the minimum. Many of my client have much broader visitation because that is what they have agreed to - emphasis on those last three words. Others take advantage of the right of first refusal for child care. Others include telephone and online communication with their children. Those who want more time with their children but find their way obstructed take to the courts to enforce their rights.

Frankly, the more I read against this sort of proposal the more support I have for my instincts that joint custody is not nirvana. I will make this same point elsewhere but at this time the law focuses on the child's best interests and not of either parent. I do not think I will like this change.

David said...


You seem to have made my point about the huge barriors. As you know, overwhelmingly custody in Indiana is awarded to mothers. All a mother has to do is contest joint custody and there's about an 75-80% chance she'll be granted custody, based on the assumption the parents cannot agree.

I guess I would buy your arguement more if there was a more balanced awarding of custody. How is it that the law states that neither parent is presumed the better parent, but the statistics show that almost 75% of custody awards are to mothers? Only 10% are to men and the rest are joint custody.(According to the National Center for Health)

You speak of contested cases. I negotiated a settlement in my case, presisly because the deck was stacked against me in receiving joint custody. I risked losing custody all together if I took the battle into a courtroom.
I also made some huge financial concessions to make this happen.
It was like, you want joint custody, pay me more money.

As for why my ex-wife would not agree to joint physical custody, I believe it was a control issue. She once told me before we divorced, she would take me for every dollar I had. When I suggested joint custody as we started our divorce process, she told me she would fight me on everything and that "Judges don't give custody to men, unless the woman is a drug addict." While I realize that is not the case, the reason for her theory is supported by the statistics.

I did eventually go to court to get extra time each week (Wednesday and every other Sunday nights.) My 8 and 10 year old daughters have often asked me why they can't spend equal time at both houses. I can assure you that I did not put that idea in their heads, yet at their young age
they crave more interaction with the parent they see less.

At any rate, I appreciate the debate. I also don't think that joint custody is nirvana, but neither is the system we are currently operating under. I'm hopeful that we'll see positive changes for children in the future.