Legal Custody and New Paternity Affidavit Law – Indiana Custody Law

With the law set to change next week, we are republishing this post.

Effective July 1, 2010, Indiana paternity law changes. Where a child is born out-of-wedlock and legal paternity is established by signing a paternity affidavit, the parents, by default, will share legal custody. Additionally, the father will be entitled to parenting time pursuant to the Indiana Parenting Time Guidelines. This is a major shift in paternity/custody law.

Legal custody refers to only the decision-making rights as to the child. It is important to recognize that this statute will not affect physical custody, which in paternity situations is still, by default, with the mother. Decisions related to health care, education, and religious upbringing are legal custody decisions.

Formerly, where a child was born out of wedlock the default was that the mother had sole legal custody. This is still the case where a paternity affidavit is not executed, but after July 1, 2010, where paternity is executed (the father and mother sign the paternity affidavit), the father will share legal custody with the mother. In other words for the major health care (ex. Braces), education (ex. public or private school), and religious upbringing (ex. baptized or not) decisions the mother and father must agree.

Whether this rule change was a good idea was heavily debated by the family law bar. On one side, where you have a father who is committed to be a parent sharing legal custody seems only fair. After all, why should a committed, involved parent not have an equal say as to the major life decisions? On the other side is the unfortunate reality that there are some uninvolved, uncommitted fathers, and in this type of situation it will be difficult to share custody decisions. Stereotypically these are also the fathers that dodge child support orders and court dates. It is a case of a few bad apples spoiling the bunch.

If the paternity affidavit is not signed can the parents still share legal custody? Yes, but only “if the court finds that an award of joint legal custody would be in the best interest of the child.” When the court determines whether an award of joint legal custody is in the best interest of the child, the court shall consider the following factors:
(1) the fitness and suitability of each of the persons awarded joint custody;
(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
(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) whether the child has established a close and beneficial relationship with both of the persons awarded joint 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 person’s awarded joint custody.

The parent’s ability to communicate is generally an important factor in cases where child are born out-of-wedlock. In a paternity situation, the parent’s relationship may have been more limited in duration and scope than where the parents are married (think the movie “Knocked Up”). That is not to say that all married parents get along much better.

If the parents fight and battle they can’t share legal custody. “[P]arents should not be permitted to maintain joint legal custody over their children if they cannot work and communicate together to raise the children.” Arms v. Arms, 803 N.E.2d 1201, 1210 (Ind. Ct. App. 2004)(citing I.C. § 31-17-2-15(2)(West 1998)). A court must decide whether parents “have the ability to work together for the best interests of their children” when “determining whether joint legal custody is appropriate.” Id. (citing Carmichael v. Siegel, 754 N.E.2d 619 (Ind. Ct. App. 2001)). The court in Arms went on to conclude that “[p]ast behavior is a valid predictor for future conduct.” Id.
If the parent’s share legal custody, but their ability to work together and communicate becomes too disruptive, the court may modify a joint legal custody order to a sole legal custody order. “[I]f parties have made child-rearing a battleground, then joint custody is not appropriate.” Periquet-Febres v. Febres, 659 N.E.2d 602, 605 (Ind. Ct. App. 1995).

While the default to joint legal custody where a paternity affidavit is signed is a new standard, general legal custody will still be subject to the above law and considerations.

Privacy Controls, Facebook and Divorce

There was an order last week from an Indiana Federal Court ruling that information posted on social networking sites (SNS) is discoverable over privacy objections.

Here is a link to an article discussing the topic of using SNS in divorce cases specifically.

A portion of the article:

Elizabeth K. Englander, professor of psychology at Bridgewater State College in Massachusetts, says people divulge information on social media because they believe no one will ever see the information they post.
"The sense online is sort of like the mob effect," Englander said. "You feel like you're one in a million, and so who will ever notice you?"
But when someone does notice, that's when some divorce attorneys pounce. Information copied from social media sites can sway the outcome of alimony payment disputes and custody fights, attorneys say. Some parents have even lost a child because of the behavior they exhibited online, the lawyers say.
The ultimate goal, after all, is to catch a spouse in a lie. Sometimes it's a wife claiming she can't afford child support payments but subsequently purchased expensive jewelry and posted photos of the items on Facebook. Or if a husband who claims he doesn't have anger problems while his social media profile is loaded with expletives. Once there is evidence of a person caught in an obvious lie, attorneys say, it undermines the rest of their credibility with the judge.

Consider how much of your information is findable and how/why you are using SNS. The article suggests learning and using the privacy controls, or getting off of SNS entirely. Here is a link and discussion of the Facebook privacy controls.

For more on this topic see an earlier post.

Public Hearing on Review of Indiana Parenting Time Guidelines 2010

The Indiana Domestic Relations Committee is in the process of reviewing the Indiana Parenting Time Guidelines. There was a public hearing on May 21, 2010. You can watch the entire hearing here. Citizens and legal professionals alike commented at the hearing.

One of the more interesting comments was that the new Child Support Guidelines are encouraging litigation and harming children. The recently amended Guidelines have an enormous impact on the support amount paid by "high earners." Formally, due to a parabola formula, child support leveled off for high earners. However, now, the there is no level off and support is paid as a flat percentage of what is earned. This changes causes the amount of "parenting time credit" a parent receives, which reduces that parent's child support obligation, to have an meaningful financial impact. An attorney commenting at the hearing described that at extreme incomes this can result in each overnight being worth $5,000 in terms of annual child support. He opined that this creates an strong financial incentive for parents to fight over overnights with the child, so as to reduce or increase the parenting time credit. If true this is certainly an issue worth considering, because if the parents are encouraged to fight the child suffers.

There were many other issues brought up at the hearing, such as: the idea that the Guidelines are a minimum suggested amount of time; the first right of refusal/opportunity for additional parenting time; holiday parenting time conflicts; relocation related parenting time issues; how to enforce parenting time; virtual parenting time; and the application of the Guidelines to domestic or family violence situations.

We will follow this as it progresses.