While not quite as common today, there is still a strong belief that mothers always get custody of the children, and fathers are awarded minimum parenting time of every other weekend and four hours one day a week. This may have been true decades ago, when women stayed home to care for the children and men went to work to support the family, but since the early 1970’s when women began joining the workforce in droves, custody statutes have changed, along with public opinion about which parent should be granted custody of the children. This blog explores fathers’ rights in Indiana child custody disputes and how Indiana law has changed to ensure that fathers and mothers have equal rights in matters affecting their children.
Until the early nineteenth century, American family law was based largely on old English common law, derived largely from religious beliefs (Steven Mintz, Children, Families and the State: American Family Law in Historical Perspective, 69 Denv. U. L. Rev. 635 (1992)). During this time, if a couple were granted a divorce, father was awarded custody and mother lost all rights to the children. This was because children were seen as property, and women had no property rights (Rebecca Spiro, From Parents' Rights to the Best Interests of Children: American Child Custody in Historical and Feminist Perspective, 1750-1899, Georgetown Law Library (1999)). Beginning about 1830, courts began recognizing the tender years doctrine, which presumed that mother was best equipped to raise young children, and granted mother custody unless father could prove that mother was unfit (Robb Strom, The Tender Years Presumption: Is it Presumably Unconstitutional?, University of San Diego, 1984)). This presumption, combined with the fact that mother was generally the primary care-giver of the children, and father the family breadwinner, resulted in custody awards oftentimes going to mother.
Today, Indiana law recognizes that fathers have just as much right to spend time with their children and make important decisions regarding their upbringing, as do mothers. The statute governing custody orders (I.C. 31-17-2-8) provides that there shall be no presumption in favor of either parent and that custody will be decided based on the child’s best interests. The statute further states that all circumstances affecting the best interests of the child should be taken into account when making a custody determination and lists some specific factors that the court must consider. These factors include the child’s relationship with each parent and other’s living in the parents’ home or having significant contact with the child, the child’s adjustment to their current home, school, and community, and the parents’ and child’s wishes. However, more weight is given to a child’s wishes when the child is at least 14. This serves to prevent a parent from exercising influence over a child about where they wish to live as well as help avoid litigating the issue each time a younger child changes their mind due to a whim or a temporary phase.
Other factors listed in the custody order statute, such as age and sex of the child, the mental and physical health of the parties, and evidence of a pattern of domestic violence, also give father an equal chance of being awarded custody. And this statute is not the only law affecting a parent’s rights concerning their children. The custody order statute applies to physical custody only. Indiana also recognizes legal custody, which gives one or both parents the authority to make important decisions regarding the child’s upbringing (I.C. 31-17-2-17). Unless parents cannot communicate in order to make decisions about the child together, live too far away from one
While not quite as common today, there is still a strong belief that mothers always get custody of the children, and fathers are awarded minimum parenting time of every other weekend and four hours one day a week. This may have been true decades ago, when women stayed home to care for the children and men went to work to support the family, but since the early 1970’s when women began joining the workforce in droves, custody statutes have changed, along with public opinion about which parent should be granted custody of the children. This blog explores fathers’ rights in Indiana child custody disputes and how Indiana law has changed to ensure that fathers and mothers have equal rights in matters affecting their children.
Until the early nineteenth century, American family law was based largely on old English common law, derived largely from religious beliefs (Steven Mintz, Children, Families and the State: American Family Law in Historical Perspective, 69 Denv. U. L. Rev. 635 (1992)). During this time, if a couple were granted a divorce, father was awarded custody and mother lost all rights to the children. This was because children were seen as property, and women had no property rights (Rebecca Spiro, From Parents' Rights to the Best Interests of Children: American Child Custody in Historical and Feminist Perspective, 1750-1899, Georgetown Law Library (1999)). Beginning about 1830, courts began recognizing the tender years doctrine, which presumed that mother was best equipped to raise young children, and granted mother custody unless father could prove that mother was unfit (Robb Strom, The Tender Years Presumption: Is it Presumably Unconstitutional?, University of San Diego, 1984)). This presumption, combined with the fact that mother was generally the primary care-giver of the children, and father the family breadwinner, resulted in custody awards oftentimes going to mother.
Today, Indiana law recognizes that fathers have just as much right to spend time with their children and make important decisions regarding their upbringing, as do mothers. The statute governing custody orders (I.C. 31-17-2-8) provides that there shall be no presumption in favor of either parent and that custody will be decided based on the child’s best interests. The statute further states that all circumstances affecting the best interests of the child should be taken into account when making a custody determination and lists some specific factors that the court must consider. These factors include the child’s relationship with each parent and other’s living in the parents’ home or having significant contact with the child, the child’s adjustment to their current home, school, and community, and the parents’ and child’s wishes. However, more weight is given to a child’s wishes when the child is at least 14. This serves to prevent a parent from exercising influence over a child about where they wish to live as well as help avoid litigating the issue each time a younger child changes their mind due to a whim or a temporary phase.
Other factors listed in the custody order statute, such as age and sex of the child, the mental and physical health of the parties, and evidence of a pattern of domestic violence, also give father an equal chance of being awarded custody. And this statute is not the only law affecting a parent’s rights concerning their children. The custody order statute applies to physical custody only. Indiana also recognizes legal custody, which gives one or both parents the authority to make important decisions regarding the child’s upbringing (I.C. 31-17-2-17). Unless parents cannot communicate in order to make decisions about the child together, live too far away from one another, or one parent consistently makes poor decisions, courts generally grant the parties joint legal custody (I.C. 31-17-2-15).
Parties involved in child custody disputes often tend to, obviously, focus on custody. However, parenting time laws have also changed drastically in the last few decades, and one parent being awarded physical custody does not necessarily mean that the child will spend most of the time with that parent. In fact, parent’s are encouraged to create their own parenting time plan, which may include the non-custodial parent having the child as often as it works for both parents and the child (Ind. Par. Time. Guid. IV). The commentary to this section of the guidelines provides information about some of the factors parents should think about when considering a shared parenting plan.
As you can see, the laws concerning fathers’ rights in Indiana child custody disputes have caught up with the times, and even when parents cannot come to an agreement on all issues involving the children, the courts now give fathers the same opportunity as mothers to spend time with and make decisions for their children.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.
