At the founding of America, women and children were the de facto property of their husbands. As time went on, law evolved (women got the right to vote) and psychology evolved. At that time, the tender years presumption worked its way into the law. Under this presumption, it favored mothers in custody cases and having custody of younger children.1 All of that has changed now, and upon divorce, there is no presumption in favor of mothers or fathers in custody.
When a judge makes a custody decision in a divorce case, he or she can consider any factors relevant to the children’s best interest. However, the court must also look at the Divorce Act’s statute on what a court considers in awarding custody, which itself makes clear that there is no presumption in favor or either parent:
“The court shall determine custody and enter a custody order in accordance with the best interests of the children. In determining the best interests of the child, there is no presumption in favoring either parent. The court shall consider all relevant factors, including the following: (1) The age and sex of the child. (2) The wishes of the child’s parent or parents. (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) The interaction and interrelationship of the child with (A) the child’s parent or parents; (B) the child’s siblings; and (C) any other person who may significantly affect the child’s best interests. (5) The child’s adjustment to the child’s (A) home; (B) school; (C) community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent; (8) Evidence that the child has been cared for by a de facto custodian . . . (9) A designation in a power of attorney of: (A) the child’s parent; or (B) a person found to be a de facto custodian of a child.”2
Thus, father’s are on the same legal footing as mother’s to obtain physical custody as mothers. The key is the presentation of the matter to the trial court in the custody litigation in the divorce. The best case for a father obtaining custody will be lost if he does not present evidence of why it is in the child’s best interests that he obtain physical custody. This is what a skilled domestic counsel does–sorts out the evidence and makes sure it is admissible and consistent with your trial theme for custody. If you put on case that as a father and present evidence you should be the primary custodian and it is in the child’s best interests, you are likely to obtain your desired custody objective. This noted, while it is not the law, there is a significant movement toward joint physical custody; courts do order joint physical custody if it is in the children’s best interests.
Indiana no longer provides “visitation” to non-custodial parents; this term was thought to minimize the time spent by the child spent with the non-custodial parent and was replaced by “parenting time” to highlight the importance of the time the non-custodial parent spends with the child. Instead, non-custodial parents are awarded Indiana Parenting Time Guideline time at a minimum in contested custody cases.
Whether this is a mother or a father, the Indiana Parent Time Guideline time for a child three (3) years of age and older is one night every week, alternating weekends, rotating holidays and one half of the summer. Again, obtaining physical custody or time above Guideline time takes a trial theme that shows the court in the evidence why it should award this in the child’s best interests. With the proper evidence (it must be in an admissible format), the trial court may well find your position to be in the children’s best interests. This blog was written by attorneys at Ciyou & Associates who handle domestic cases across the state. This blog is written for general educational purposes. It is not intended to be relied upon for any given case or issue. This blog is not legal advice. It is an advertisement.
- In Blue v. Blue, 139 N.E.2d 370, 371 (Ind.Ct.App. 1966), the Court of Appeals rejected the appellant’s argument that the trial court abused its discretion by not recognizing and applying the ‘tender years’ doctrine’. Instead, the court affirmed the trial because the best interests standard applied and was the current law, which was even conceded by the appellant. Thus, the tender years presumption was replaced by the best interests standard in the 1960s.
- Indiana Code section 31-17-2-8.