Custody and Parenting Time

When someone says they want 'custody' or 'sole custody' what do they really mean? They usually explain that they want to be involved in decision making and want to have substantial time with the child; however, being involved and have substantial time with the child is not necessarily controlled by the title of 'custody.' This posting will try to explain the title of 'custody.'

In Indiana we have two components to custody: (1) legal custody and (2) physical custody. Legal custody refers to decision-making authority for decisions related to the child's medical care, educational placement and religious upbringing. If you and the other parent can communicate effectively on these topics you could share legal custody. What if you reach an impasse on an issue? That issue can be resolved with attorneys, a mediator or with the help of a parenting coordinator (see previous blog entry).

'Physical custody' and 'parenting time' are best expressed as "who is going to have the child and at what times?" If one parent has 'sole physical custody' we do not know what that really means unless we know how much parenting time the other parent will have. Your court order might say you have 'sole physical custody,' but it could also say that the other parent has the child three days one week and four days the next? There is nothing 'sole' about that. As a default recommendation, the Indiana Parenting Time Guidelines suggest that at a minimum the parent that has the child less should have the child every other weekend, one evening a week (this can be an overnight), and one half the summer and for alternate holidays. This equates to 25-30% of the time with the child.

What about a 50/50 split? This is sometimes a goal of a prospective client. It can work in certain circumstances, but it has to be in child's best interest as well. Logistical factors can control this:

Do you live close to each other?

Can each parent get the child to school?

Can work schedules support this?

Who will take and pick up the child to activities?

Indeed, there are certainly more factors. As you might imagine, being able to manage a 50/50 split of parenting time depends on how well the parents can work together and communicate.

Finally, let's discuss what the title of 'custody' does not control. It does not give one parent the right to decide what activities the child is involved in, whether the child should be allowed to go see the new Harry Potter movie, or whether the child should be allowed to stay up past 11 p.m. This are decisions each parent gets to make during the their respective parenting time (however, the issue of activities needs to involve communication between the parents, especially where future scheduling is needed or there is a fee for the activity that is shared). Put another way, just because you have 'custody' you do not get to micromanage all of the child's concerns.

When considering how to settle the issue of custody, don't focus on the title of 'custody,' but how to frame your settlement agreement or court order to cause you to have input into the decisions you want to share and the time you wish to have.

Custody Dispute? You Need A Lawyer

Don't believe me? Here is what the Indiana Court of Appeals said in a recent relocation/custody case.

We encourage parties facing issues involving the custody of children to obtain counsel to aid in the litigation of custody disputes. Because the court's order has such a profound effect on the lives of the parties and their children, we cannot emphasize enough the importance of presenting sufficient evidence and developing an adequate record.

In this case the mother had primary custody of a child. She was in the Navy. She was transferred to Florida and needed to move with the child. Mother filed a Notice of Intent to Relocate (a requirement in Indiana). Father objected to the child moving to Florida and a custody battle ensued. Father seemingly 'won' and was granted primary custody.

He won right? Well, not quite. Father and Mother both represented themselves at the custody hearing and, according to the Court of Appeals opinion, failed to provide the necessary evidence at the custody hearing. The trial court did the best it could with what was provided and made a ruling in favor of Father. However, Mother hired an attorney and appealed. The Court of Appeals remanded the case, told the parties to maintain the status quo and ordered "further proceedings," i.e. a new hearing with additional evidence.

The troubling part of this case is that the parties and the child do not have resolution. Mother's moving plans may have been put on hold, but, considering that she serves in the military, that may not have been possible. She incurred appellate attorney fees, and will incur fees on remand. Father, who thought he had won custody, is now in limbo and will likely incur attorney fees as well. Who is paying what amount of child support? Finally, the child may have been sent back and forth between parents and/or schools as a result.

This case illustrates that if you have a custody dispute, you can't afford not to have a lawyer. Click on the title of this post to read the entire case.

Litigation - You won a pie eating contest. First place? More pie!

I took the title of this blog from a friend of mine. He used it to describe making partner at a law firm. To make partner you keep long hours and work hard. Your prize once you are a partner? Long hours and more work! The point is, was the struggle worth the prize?

Is it truly worth fighting in your divorce case? That is a much different analysis. If you are litigating the value of a business or another variable asset then, yes it might be worth fighting. Same goes for dissipation of assets.

In other cases, particularly debt cases or where there are very few marital assets of value, make sure you are not fighting for the sake of fighting. In most life decisions the "cost of doing business" is considered. For example, does it make sense to pay $5000 in closing costs to refinance a mortgage if the amount you pay monthly is only reduced by $5? Of course the answer is no. The same is true with your divorce case. Should you each spend $5,000 each to fight over a $5,000 difference? No. What about a $10,000 difference? That is a little more difficult, but if $10,000 is your "best day" in court the answer is still no, because you have to consider the risk of not getting your best day. $100,000? Yes. If you only have to spend $5000 to risk taking an extra $100,000, then from a risk-reward analysis you should take the risk.

If you are litigating custody or parenting time, then the analysis is more subjective. Is it worth $5000 to get one more day each week with your child? Most people would say yes. How about one day more per month? How about one day more per year? Ask yourself the same questions but consider a much large sum of money, like $20,000.

Finally, to throw a wrench of this entire discussion, consider whether you have the stomach to fight. Can you bear your divorce case pending for 1 year or more? Consider whether an eighteen month custody battle is worth it. Will you be able to co-parent with him/her afterwards? How will the battle affect the child?

Your goals and the risk versus reward of achieving those goals should control your decisions in your divorce case. Don't get caught up in the heat of the moment and lose sight of what you are fighting for.