Custody battles don’t happen very frequently. However, when they do occur, they are devastating. One parent may feel that the judge found parenting skills lacking. The other parent may feel triumphant. In most cases, however, a custody determination is a very tough decision, and the judge is often choosing between two equally qualified people.
The “best interest” standard is vague. Although Indiana Code 31 17 2 8 directs the courts to consider a number of factors in determining custody issues, the judge’s ultimate decision can end up being a guess. It is hard for a judge to tell who is being more honest when two people are trying to portray themselves as angels, while testifying that the other parent is an escaped resident of the bad place. The kind of testimony which might aid the judge in making a decision is often difficult to acquire, as many of the most revealing family events take place behind closed doors. In too many instances, angry spouses are inclined to exaggerate or even fabricate events concerning the other person’s character and ability to raise children. An occasional marijuana cigarette can be translated to a judge as a raging drug addiction. A person who consumed too much alcohol in one instance can easily be portrayed as a stumbling drunk when a child’s post-divorce home is at issue. Each case is fact sensitive, but the following examples are illustrative of some of the situations our courts are called upon to analyze.
A bad attitude toward the other parent can result in a loss of custody. Indiana courts agree that children should be encouraged by each parent to have a healthy relationship with the other. Thus, in Lasater v. Lasater, 809 N.E.2d 380, the court found that a mother whose child wanted to remain with her could be removed to her father’s home because of the mother’s toxic attitudes towards the father. In that case, the court even suspended the mother's visitation for several months to permit the child to adjust to her father’s home without interference. A custodial parent’s refusal to abide by court orders regarding counseling was also deemed to be a factor in permitting a change of custody in another case. The mother had reported the counselor to state authorities for malfeasance, just to prevent him from having an input in the custody decision. Tompa v. Tompa, 2007 INCA 44A05 0606 CV 285.
Even a loving parent can find himself or herself facing supervised visitation. In Shady v. Shady, 2006 N.E.2d (53A01 0605 CV 222), the father’s visitation was supervised, not because he would harm the child, but because he was from Egypt. The court believed that even though he had renounced his Egyptian citizenship under oath, he was still a citizen of that country and could move the child there at any time, as he had frequently threatened to do. Under Egyptian law, he would have more rights than his ex-wife, making it impossible for her to retrieve the child if he carried out his threats.
If a custodial parent wants to relocate to another state, he or she must notify the other parent before executing the plan. IC 31 17 2.2 1. Section 31 17 2.2 3 of the Code sets forth a number of items which must be included in the notice of intention to move, which is furnished by certified mail to the noncustodial parent. New telephone numbers and addresses must be provided. The relocating parent must give 90 days’ notice to the other parent before making the move. He or she must inform the noncustodial parent that he or she has 60 days to object to the proposed move and can ask the court to set the case for hearing to determine whether it is in the child’s best interest to leave Indiana. If the moving parent can show that there are valid reasons for wanting to leave, the other parent must show why it would not be in the child’s best interest to relocate. The custodial parent’s wish to leave Indiana is not, standing by itself, enough reason to give the child’s care to the other parent. However, factors such as schooling and close relationships with other relatives and friends can convince the judge that the move is not in the child’s best interest. In such a case, the custodial parent can leave, but the child may end up staying here with the other parent.
Finally, if both parents are unfit to care for the child, the court can place him or her with a third party. In Christian v. Durm, 2007 INCA 48A04 0610 CV 610 052307, the parties filed for a marriage dissolution. Their child, who weighed 13 pounds at nine months old and was otherwise mistreated, had been placed with a grandmother. The grandmother intervened in the divorce. The baby’s parents subsequently attempted reconciliation and requested that the divorce be dismissed. The appeals court found that the grandmother could keep the divorce case open for purposes of establishing that it was in the child’s best interest to remain with her.
In most cases, parents know where their children should live even though they are divorcing. They are willing to give each other the benefit of the doubt in terms of parenting skills and abilities. Neither wants the other to be deprived of contact with the children, and they are willing to take the extra time and effort required by the Indiana parenting guidelines to assist the noncustodial parent in maintaining a good relationship with their children. However, when one or both of the parties insist on fighting each other rather than making a unified decision regarding their children, the government has to take over in the form of a divorce judge to make this very important decision for them. Even a judge who can make the right decision for the children cannot make good parents out of hostile, immature people. Warring parents damage their children. This is not to say that there aren’t situations where the only solution is to ask the courts for help. However, people who cannot agree on this most important issue should undertake counseling before they go to court to aid them in reaching a decision that is truly in the best interest of their children.
