Attorney for Appellant|
Jonathan E. Palmer
Attorneys for Appellee|
Karl L. Mulvaney
DAWN NALEE WINKLER,
Appellant (Petitioner below ),
|) ) ) ) Court of Appeals No. ) 16A05-9612-CV-528 ) ) )|
This is a child custody case involving two children with hearing impairments. One child is totally deaf and the other moderately impaired. The trial court granted father's request to change custody of the children to him from mother and the Court of Appeals affirmed.
I find no fault with the trial court's thorough and careful analysis of father's request.
And at the end of the day I might well agree with its decision to change custody. But I
respectfully dissent from the denial of transfer in this case because I believe it raises two
sets of questions of statutory interpretation that warrant the attention of this court.
The first issue that I think we should grant transfer to address is what I will call the subgroup issue.See footnote 1 1 Mother contends that as the custodial parent, she is entitled to raise the children in the subgroup of deaf culture, which she describes as a thriving, independent
community of its own with many social activities, churches, social gatherings and employment opportunities, linguistic styles, stories and folk lore. According to mother, American
Sign Language (ASL) is the native language of deaf culture _ [a]cquiring and perfecting ASL skills should dictate the educational setting and not the emphasis to learn English
skills early in childhood.
Our dissolution of marriage statute provides that the custodial parent may determine
the child's upbringing, including the child's education, health care and religious training.
Ind. Code § 31-17-2-17(a) (Supp. 1997).See footnote 2
If a tenet of the deaf subgroup is to develop
proficiency in ASL before beginning English, is that not the kind of an upbringing and
education determination that Ind. Code § 31-17-2-17(a) entrusts to the custodial parent?
And if a custodial parent's educational determinations are subject to court scrutiny, what
result in challenges to a custodial parent's following subgroup dictates as to the child's
health care and religious training? I would grant transfer in this case to examine when
adherence to subgroup principles may jeopardize child custody.
The second issue that I think we should grant transfer to address is what I will call the remedy issue. While our dissolution statute entrusts the custodial parent with authority to determine the child's upbringing, a trial court may specifically limit this authority upon a finding that a child's physical health would be endangered or emotional development
significantly impaired. Ind. Code § 31-17-2-17(b) (Supp. 1997). A separate section of the
statute prohibits a court from modifying custody unless (1) the modification is in the best
interests of the child; and (2) there is a substantial change in one or more specific factors
such as the wishes of the child's parent or parents, the child's adjustment to the child's
home, school and community, and the mental and physical health of all individuals involved. Ind. Code §§ 31-17-2-21(a) and 31-17-2-8 (Supp. 1997).
Father contends that by refusing to allow the children to develop their sense of
hearing, mother has prevented her children from developing emotionally, educationally and
socially. If that be so _ and the trial court found that it was _ is the proper remedy under
our statute a specific limitation on mother's authority under Ind. Code § 31-17-2-17(b) or
does it constitute grounds for the more drastic remedy of change of custody to father under
Ind. Code § 31-17-2-21(a)? It appears to me that a strong argument can be made that our
statute contemplates the former, less drastic, remedy when a custodial parent's upbringing
decisions adversely implicate the child's physical health or emotional development. I would
grant transfer to identify the point at which the court's remedial power in such circumstances moves beyond imposing a specific limitation upon the custodial parent's authority
to the much more drastic remedy of a change in custody.
SHEPARD, C.J., concurs.
Converted by Andrew Scriven