‘Joint physical custody’ means equal parenting time in divorce case, COA rules in reversal

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A dissolution decree did not award the equal parenting time that a mother and father had agreed to, resulting in a reversal from the Court of Appeals of Indiana.

The parents, Jamie and Leonard Russell, have a daughter together.

Jamie filed for divorce in October 2021, and at a hearing in January 2022, Jamie indicated her intention to move from the Indianapolis area to somewhere closer to Lafayette, where she was employed.

In March 2022, the parties participated in mediation and signed an agreement providing that the parties would share legal and physical custody of their daughter.

But the Marion Superior Court then entered an order providing that it was in the child’s best interest for Leonard to have primary physical custody.

The court’s subsequent final decree denied the mother’s motion to set aside the provisional order and awarded the father sole legal custody and primary physical custody of the daughter.

Jamie appealed, arguing that both parties agreed to share joint physical custody of their daughter in the partial mediated agreement, meaning equal parenting time.

The Court of Appeals agreed and reversed the final decree, remanding with instructions for the trial court to award equal parenting time pursuant to the partial mediated agreement.

Judge Elizabeth Tavitas wrote the opinion for the appellate court.

“In the present case, it is especially apparent that the parties understood the term ‘joint physical custody,’ as used in the Partial Mediated Agreement, to mean equal parenting time,” Tavitas wrote. “Indeed, after stating that the parties agreed to joint physical custody, the Partial Mediated Agreement then called for each parent to spend alternating periods of three days with Daughter.”

The term “joint physical custody” might not require a perfectly equal 50-50 split of parenting time, Tavitas wrote, but the appellate court determined that granting Leonard 55.5% of parenting time and Jamie 44.5% was consistent with the intention of the parties to share “joint physical custody” of their daughter.

“The trial court’s final dissolution decree purported to award the parties joint physical custody but did not award Mother and Father equal parenting time. We, therefore, conclude that the trial court abused its discretion by failing to abide by the terms of the Partial Mediated Agreement it had already accepted,” Tavitas wrote.

Judges L. Mark Bailey and Dana Kenworthy concurred.

The case is Jamie Marie Russell v. Leonard Alan Russell, 23A-DC-578.

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