Joint Stip involving modification of custody

[hoosierpapa4]

I have included the contents of the Joint Stipulation as drafted and have some questions associated with it.  My atty. doesn't believe that this will create an issue, but I believe it will.

STATE OF INDIANA                        )         IN THE ALLEN SUPERIOR COURT
                      )SS:         FAMILY RELATIONS DIVISION   
COUNTY OF ALLEN            )           CAUSE NO. 0xxxx-xxxx-xx-xxx

IN RE: THE MARRIAGE OF:   )
               )
Hoosierpapa A. Doe,       )
         Petitioner,         )
               )
and               )
               )
Hoosiermama E. Doe,      )
         Respondent.      )

STIPULATED AGREEMENT RE: CUSTODY

   Comes now the Petitioner, Hoosierpapa A. Doe, in person and by counsel and comes now the Respondent, Hoosiermama E. Doe, in person and by counsel, and the parties hereby stipulate and agree as follows:

   1. On March 3, 2003, the Court approved the parties' Stipulation regarding child custody. The parties' Stipulation provided that Petitioner and Respondent shall have joint legal custody of the parties' four minor children, namely: Hoosierdaughter1 Doe, born August 26, 1986; Hoosierdaughter2 Doe, born January 15, 1989; Hoosierdaughter4 Doe, born November 30, 1993; and Hoosierdaughter3 Doe, born April 26, 1992.

   2. The Petitioner, Hoosierpapa A. Doe, filed a Verified Petition for Modification of Child Custody which the Court has set for hearing on the 1st day of September, 2004, commencing at 9:00 a.m.

   3. The parties agree there has been a substantial and continuing change in the factors set forth in I.C. 31-17-8-2 and that the current orders regarding child custody of the parties' minor children are unreasonable and not in the children's best interests.

   4. The parties agree that Respondent and Petitioner shall continue to share joint legal custody of Hoosierdaughter1 Doe, Hoosierdaughter2 Doe, Hoosierdaughter4 Doe, and Hoosierdaughter3 Doe.

   5. The Respondent, Hoosiermama E. Doe, shall have primary physical custody of Hoosierdaughter1 Doe, born August 26, 1986 and Hoosierdaughter2 Doe, born January 15, 1989 until further Order of this Court.

   6. The Petitioner shall have parenting time with Hoosierdaughter1 Doe and Hoosierdaughter2 Doe at all reasonable times and places as the parties may from time to time agree all of which shall be in accordance with the Indiana Parenting Time Guidelines.

   7. The Petitioner shall have primary physical custody of Hoosierdaughter4 Doe, born November 30, 1993 and Hoosierdaughter3 Doe, born April 26, 1992 every Sunday commencing at 5:00 p.m. until Thursday morning when the children are delivered to school.

   8. The Respondent shall have primary physical custody of Hoosierdaughter4 Doe, born November 30, 1993 and Hoosierdaughter3 Doe, born April 26, 1992 every Thursday commencing at the conclusion of the school day until Sunday at 5:00 p.m.

   9. In addition, Petitioner shall have primary physical custody of Hoosierdaughter4 Doe, born November 30, 1993 and Hoosierdaughter3 Doe, born April 26, 1992 on every third weekend of every month commencing at the conclusion of the school day on Thursday until the conclusion of Petitioner's primary custodial time as set forth above.

   10. The Respondent shall have primary physical custody of Hoosierdaughter3 Doe, born April 26,1992 and Hoosierdaughter4 Doe, November 30, 1993 every fourth Tuesday of every month commencing at the conclusion of the school day until 8:30 p.m. every Tuesday evening.

   11. The parties agree that during the extended summer vacation they shall have primary physical custody of Hoosierdaughter3 Doe, born April 26, 1992 and Hoosierdaughter4 Doe, born November 30, 1993 on an alternating two (2) week period. Respondent's two (2) week physical custody period to begin the Sunday following the end of the regular school year.

   12. The parties agree that the Indiana Parenting Time Guidelines holiday provisions shall supercede the physical custody provisions described above with respect to the parties' four (4) children with Petitioner being designated as the "non-custodial parent" for holiday purposes only.

   13. The Indiana Parenting Time Guidelines provisions regarding the right of first refusal with respect to child care shall apply in all respects.

   14. The parent exercising their parenting time shall provide transportation for the children at the commencement of their parenting time with the exception of the fourth Tuesday of every month wherein as Respondent shall be responsible for transportation at commencement and conclusion of her parenting time.

   15. The parties agree that their hearing scheduled for September 14, 2004 regarding the Petitioner's request for Modification of Child Support shall remain on the Court's calendar unless otherwise agreed to by the parties.

   16. All prior Orders of the Allen Superior Court shall remain in full force and effect unless specifically modified herein.
   

1) In all paragraphs, there is this notion of "primary physical custody" while in the direct care of either Petitioner or Respondent.  To my knowledge, primary physical custodial parent is the one who ultimately would be acting in the best interests of the children and would be the one who ultimately makes decisions concerning the children.  By having it written this way, does it leave too much room for interpretation, or do you think the Judge will look at it and say that since Petitioner has the majority share of time with the children that Petitioner shall be the Primary Physical Custodian for the children?

[Imom]

I am from Indiana and this does not make since to me but this is what our judge said...................My dh and bm have
 Joint Legal Custody, Shared Physical Custody:
Dad Physical Custody from one week following school until one week following school.
Mom Physical custody any time the child is out lionger then a three day week end.
Visitation:
Any Reasonable
Dad even year X-mas vacation
Mom odd year X-mas vacation.

Yes theirs is long distance my point being this is all the co says (other then no cs and they alternate taxes) period, no one listed as primary physical custodian, no one listed as having primary physical custody.

Ok back to the judge he explained to us that when dh has his physical custody periods he is the primary physical custodian, when bm has her physical custody periods she is.................but dh has primary physical custody????

 I am sure soc he can help you, this was just our experiance.

[hoosierpapa4]

nm

[socrateaser]

>1) In all paragraphs, there is this notion of "primary
>physical custody" while in the direct care of either
>Petitioner or Respondent.  To my knowledge, primary physical
>custodial parent is the one who ultimately would be acting in
>the best interests of the children and would be the one who
>ultimately makes decisions concerning the children.  By having
>it written this way, does it leave too much room for
>interpretation, or do you think the Judge will look at it and
>say that since Petitioner has the majority share of time with
>the children that Petitioner shall be the Primary Physical
>Custodian for the children?

Different jurisdictions have different nomenclature -- it's a big mess. However, there is an advantage to being designated as such, i.e., there are laws in some jurisdiction permitting the primary custodian to obtain assistance from law enforcement in recovering a child who is withheld by the other parent, beyond the time limits of the court order.

So, on balance, I'd say don't look a gift horse in the mouth.