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COA affirms joint legal custody

September 12, 2008

The Indiana Court of Appeals upheld a dissolution court's decision to grant joint legal custody of two minor children to the parents, finding the lower court followed Indiana statute in granting the custody.

In Diana Gonzalez v. Edward Gonzalez, No. 64A04-0712-CV-733, Diana Gonzalez argued the dissolution court erred in granting her legal custody to make health care decisions for two minor children, and in giving her ex-husband Edward Gonzalez legal custody over educational and religious decisions.

Shortly before Diana filed for divorce, Edward was excommunicated from the church where the family attended services and where the children were enrolled in school. Members of the congregation are not to associate with those who have been excommunicated; Edward wanted the children to attend a different church and school.

Diana asserted the dissolution court "ignored" the statutory requirements of Indiana Code Section 31-17-2-17. Diana had physical custody of the two children and argued that the term "custodian" used in the section applied to the person with physical custody of the child, and according to the statute, she should be able to make the decisions regarding education and religion.

But the appellate court disagreed, finding the term custodian in the statute applies to the legal custodian, not physical custodian, of the child, wrote Judge Edward Najam. In addition, during the final custody hearing, Edward's request for legal custody of the two children was the functional equivalent of a "motion" under subsection (b) of the statute, which allows for limitation of a custodian's authority, wrote the judge.

The joint legal custody arrangement is in the best interest of the two children because there is evidence if Diana had educational and religious legal custody, she would enroll the children in a school and church in which their father had been excommunicated. Allowing Edward to enroll the children in a different school and church is what's best to allow for a healthy relationship with their father, the court found.

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