Family law court judges in Indiana work hard to establish balanced child custody and visitation schedules that are fair to both parents and in the best interest of the child.
It’s not uncommon, however, that an agreement that worked at the outset of the separation or divorce is no longer sustainable or acceptable for one reason or another. This is referred to as a material change in circumstance. Of course, that’s life, and for this reason, it’s common for parents to at some point request that the court revisit the issue of child custody and visitation, also formally known as parenting time.
Indiana parenting time guidelines were recently updated in March and again in August of this year. The arena of family law is one that is always evolving, and the family law case of Moix v. Moix, recently heard by the state supreme court in Arkansas, deftly illustrates this issue.
Although this is an out-of-state case, judges from across the country carefully watch decisions that are made by other state supreme courts. That’s particularly true when the issues are especially newsworthy. Similar to a headline-making case out of Alabama earlier this summer, the Moix case deals not only with parenting time, but also cohabitation agreements and the issue of gay rights.
As opinions on the formal recognition of gay relationships have continued to evolve in this country, so to have the courts, albeit at a much slower pace. We anticipate that family courts in Indiana will soon be confronting many of these same issues.
In the Moix case, the state supreme court took on an appeal from the father of a 12-year-old boy. The child’s parents had been given joint custody in the divorce agreement, which further stipulated that both parties were not to have overnight visitors of the opposite sex while the child was present. Such cohabitation restrictions are not uncommon in divorce settlements, and are viewed as a way to protect the child from harm caused by a parent who might bring multiple romantic partners in and out of the child’s life.
Of course, the situation may change when one parent becomes seriously romantically involved with someone else. Cohabitation absent marriage is a growing phenomenon in general across the U.S., but the issue poses special challenges for homosexual couples. While cohabitation restrictions wouldn’t apply if the parent in question were married, that isn’t an option for parents in states where such unions are illegal – Indiana and Arkansas being among them.
In Moix, the father sought redress from the circuit court’s visitation order, which contained a specific provision barring his long-time domestic partner from being present during overnight visits with his child. The father argued that this order violated both his state and constitutional rights to equal protection and privacy, and further that the court erred in finding that the restriction should be required, even when no harm to the child was identified.
In response, the Arkansas Supreme Court agreed with him, reversing the circuit court’s decision and remanded the case back to the lower court for further consideration.
The primary issue was whether the cohabitation order is required in cases where there has been no demonstrable harm to the child. The high court held that there is no blanket rule that requires such an order.
Cases like these are determined on a case-by-case basis, with the best interest of the child trumping everything else. Therefore, it’s imperative that family law attorneys representing similarly situated clients take great pains to prove that the child’s life is not only unharmed by the presence of the cohabiting partner, but further that it may be enriched.
Gary Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City. Call Toll Free 877-446-5294.
Moix v. Moix, Nov. 21, 2013, Supreme Court of Arkansas, Appeal from the Pulaski County Circuit Court
More Blog Entries:
Indiana Cohabitation Agreements in Demand as Remarriage Rates Dip, Nov. 25, 2013, Indiana Child Custody Lawyer Blog