During divorce, or paternity, the issue of child custody comes up. Which parent (or in some cases a third party known as a de facto custodian, which is discussed in other blog posts), should have custody of the child. But what does “custody” actually mean?
Many people may not realize that there are actually two (2) types of custody, physical custody and legal custody. Physical custody involves where the child sleeps the majority of the time (which parent the child is living with primarily and physically with). Legal custody is generally defined as decision-making regarding the main issues of education, medical issues, and religion of the Child.1
The United States Supreme Court, and the Indiana Supreme Court have both held that choices of parents regarding the upbringing of his or her children are among the fundamental liberty rights protected by the Constitution and are of basic importance in our society.2,3In Indiana, the court’s have made a very clear statement that custody and control of one’s child (and the choices related to how one’s child will be raised) is one of the oldest fundamental liberty interests in America, which should be highly protected.
Because the choices involved in raising one’s child are so highly protected, when parents divorce, or otherwise legal custody is determined in a paternity proceeding, how far can the courts go in making decisions for parents who may disagree on regular parenting issues?
Because the legal custody decisions are such important topics, often, Courts prefer both parents to have joint legal custody of the child, and joint legal custody is more the norm, even if one or the other parent has primary physical custody. This allows the parties to work together to make crucial decisions regarding the upbringing of the Child.
However, communication is a key aspect of joint legal custody. Sometimes, when a custody decision is before the court, it becomes apparent that the parents cannot make these decisions together, and that it is in the child’s best interests for one parent to have the final decision making authority. Indiana law specifically defines legal custody as including decisions about a child's education, health care, and religious training.4
However, even if one parent is the sole legal custodian, and has the final decision making authority, he or she still has a duty to keep the other parent informed of those decisions. Additionally, because the law defines decisions related to education, health care and religion being those decisions most highly protected as a personal Constitutional right to make, what about other parenting decisions, such as if the child should participate in extracurricular activities, etc.
While on the surface it may not appear that the decision to let a child play a sport, or sports, or participate in boy/girl scouts, etc. would be a fundamentally protected decision, sometimes, these parental decisions are not always black and white. For example, a parent who chooses to not let his or her child play a sport because the child is struggling with schoolwork, and needs the time to focus on tutoring and studying, versus the time involved in going to practices and games. In that situation, the parent is not just making a decision about if the child should play sports, which is not per se a Constitutionally protected decision, but instead is making a decision that affects the child’s education, which is Constitutionally protected.
In many cases, the lines between what decisions are and are not constitutionally protected are blurred, because a decision regarding your child is never simple, and often a parent factors in many other outside influences in making the decision. Therefore, it is important to consider the three (3) constitutionally protected categories of decision making (health, religion, and education) and how many other parental daily decisions tie into those categories, to give legal custody its true and intended meaning.
Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori B. Schmeltzer.
