For a significant period of time, the “tender years doctrine” or “maternal preference rule” was a part of Indiana Divorce and Paternity law. This meant that mothers were favored with infants and younger children in particular and in custody litigation, generally. This rule specifically held that there is a natural right for a mother to have the first privilege to nurture and care for her own children based upon the common experience that the child’s best interests are ordinary served when assured the love, care and attention of his or her mother.
However, that statute and caselaw authority has been replaced by a statutory scheme that provides the court with a list of factors to weigh in child custody litigation as well as anything else that might factor into making a custody award in a mother or father.
In fact, the only remnants of the “tender years doctrine” may be contained in the Indiana Parenting Time Guidelines where it specifies an infant or toddler needs to spend more time with one parent: “The first few years of a child’s life are recognized as being critical to that child’s ultimate development. Infants (under eighteen months) and toddlers (eighteen months to three years) have a great need for continuous contact with the primary care giver who provides a sense of security, nurturing and predictability. It is thought best if scheduled parenting time in infancy be minimally disruptive to the infant’s schedule.” Yet, this is based more on psychology and bonding than a maternal preference. Father’ can fulfill this role. Father’s do get custody of infants and toddlers under the statutory factors the court is to consider; and there is no presumption favoring either parent at any time. It is all about working with your counsel to show why having custody is in the child’s best interests.
So, if you are a father of an infant born out of wedlock and in a paternity or divorce case, you are on equal footing with mother to obtain custody, particularly if she is not breast-feeding the infant. With skilled counsel, you must establish that it is in the child’s best interests that you have sole physical custody. While that may seem difficult, it is not an insurmountable burden in today’s world where many fathers stay at home and raise their children while the mother works. There are a host of variations in which a father can manage work and physical custody, but normally, with guidance from seasoned divorce counsel, a working plan can be determined to make sole physical custody work, particularly when the children are of age and in school, given the variety of before and after care programs available to all parents.
Legal challenges tend to arise when determining where the father has worked, if there are multiple children, and if mother has been their caregiver. In most cases, a father cannot simply abandon his job to seek sole physical custody. However, even this boundary is being erased with the ability to work remotely which allows a father to do his job and take care of his infant or toddler. Ultimately, with skilled counsel, you have to develop the evidence to show sole physical custody will work with an infant in his or her best interests. With an older child and two working parents, the slight advantage a mother might have with an infant and toddler is eliminated. What you have to do is, again, work carefully with your counsel, perhaps even changing your job or otherwise to show the court that you can have physical custody, that it will work, and that it is in the child’s best interests. These types cases also bode well for shared physical custody on a daily rotation like 3-2-2-3 or 5-2-2-5.
The ultimate question the trial court will have is what is in the child’s best interests. If you have skilled counsel who can work through each of the statutory factors and other considerations that impact the child, and can show sole physical custody in a father or joint time is in the child’s best interest, the court may well side with you. Most litigants fail to really develop a trial theme to show the court the evidence in a step-by-step fashion and why the custody arrangement they seek is in the child’s best interests and, practically speaking, why it will work out (a parent cannot present a strong argument sole physical custody if he is a traveling businessman). Ciyou & Dixon, P.C. advocates have obtained initial physical custody in fathers, and in modification and relocation cases. The key is to work with you trial counsel to obtain and develop the evidence to show the court whey sole or joint physical custody works. Judges have wide discretion to award sole or joint physical custody even though that is not yet the norm in the law.
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