Saturday, March 13, 2010

Thinking About Custody Issues

Recently I had a long telephone call with another lawyer who is on the side of me in two different custody cases. We were discussing why my clients were opposed to a shared parenting agreement. After finally clearing out that it was not my views driving the cases but my clients, I think we agreed to two things: 1) we execute our client's goals so long as they do not put us into unethical territory, and 2) there is no good definition of joint and/or shared parenting. Otherwise, we may have agreed that those parents sharing parental duties will share custody after a divorce.

We remained pretty much divided on the issue of shared parenting - me on grounds of practicality and he on grounds of theory. Or so, I will put it.

I did not mention such things as the following from Fuchs v. Martin, 836 NE 2d 1049 (Ind Court of Appeals 2005)

Dr. Grana, who was one of the two custody evaluators in this case, testified:

So that I ended up with the feeling that not much has changed in the sense of their awareness. Their awareness that change begins with them and that they have to demonstrate a willingness to act differently. More cooperatively. More courteously with one another. And so the issue was still, you know, one of custody. And my feeling was that neither one had convinced me that they deserved the role of sole custodial parent. There was still a lot of instability and immaturity ... And I was wanting to continue with some type of liberal visitation because I think that, you know, I couldn't see a reason why both parents should not be involved with their daughter .... but I was most concerned about trying to build a structure that would help them get through the next bunch of years. And that's why I was recommending some type of mental health intervention. That seemed to me to be more important than the label of custody. So that they could have some avenue for building some type of co-parenting structure that would be effective for them. And so that's why I made a recommendation for liberal visitation. No change in custody. And try to get them involved in the mental health system.

Within that paragraph I see the points that I look at when evaluating a custody case:

  1. The parents ability to cooperate and work together.
  2. The maturity of both parents.
  3. The stability of both parents.
  4. The involvement of both parents in their children's lives.
  5. What sort of co-parenting structure there is (by the way, that is a great phrase and concept)

Then there is also this paragraph that contains a lot of truth and states a few reasons why I think that a presumption of shared parenting is a bad idea:

(Tr. at 103.) In addition, he noted "high conflict couples will do battle with sole custody just as often as they will with joint custody," (id. at 105), and "liberal involvement still is important for [T.F.]." (Id.) He was also concerned that giving one parent sole custody would give "the sole custodial parent the belief or endors[e] their belief that the other parent is a bad parent." (Id. at 107.) In his report, he recommended "[Mother]'s residence be considered the primary residence for [T.F.]." (Exhibits, Respondent's Exhibit B at 11.) That evidence supports Findings L and DD, and portions of Finding FF.

Those that fight will fight. Presuming and/or awarding joint custody based on the idea that this will reduce conflict and free up court time is sheer laziness unless backed up by the facts of each case.

On the other hand, that second sentence highlights a problem that needs addressing by lawyers and courts. Under Indiana law, custody between parents does not require that one parent be unfit. Custody between parents is about the determining the custody that is in the best interests of the children. I am not sure how many lawyers explain that to their clients or how well. Courts will not usually take the time to make the point. Perhaps if we did, then maybe there would less fighting between joint and sole custody. It would not change the issue in my two cases mentioned above.

I will go further and say that any parent who uses any form of custody - joint, shared or sole - to bully the other parent ought not have custody of their children. Not for the sake of punishing that parent or rewarding the other parent, but because anyone using a custody proceeding to bully, to control, the other parent is not acting in their child's best interests.

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