Attorney for Appellant

Jonathan E. Palmer

Matchett Arnold & Palmer

Shelbyville, Indiana

Attorneys for Appellee

Karl L. Mulvaney

Candace L. Sage

Bingham Summers Welsh & Spilman

Indianapolis, Indiana

	IN THE

	INDIANA SUPREME COURT

DAWN NALEE WINKLER,

	Appellant (Petitioner below),

	v.

KIRK STEVEN WINKLER, SR.,

	Appellee (Respondent below).

)

)	Supreme Court No.

)	<insert>

)

)	Court of Appeals No.

)	16A05-9612-CV-528

)

)

)

	APPEAL FROM THE DECATUR CIRCUIT COURT

	The Honorable John A. Westhafer, Judge

	Cause No. 16C01-9201-DR-19

	ON PETITION TO TRANSFER

September 783, 1998

SULLIVAN,  Justice, dissenting from the denial of appellant’s petition to transfer.

	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.

	The basis for father’s change of custody petition was that it was in the best interests

of the children to be “mainstreamed” in the local public school rather than raised in “deaf

culture” (at the Indiana School for the Deaf) as was custodial parent mother’s choice.  Key

in the trial court’s custody determination was mother’s insistence that the children become

fluent in American Sign Language as their first language before learning any English

(including through the use of hearing aids).  Indeed, mother’s decision that the moderately

impaired child eschew a hearing aid appears to have been central both to the trial court’s

decision to change custody and the Court of Appeal’s decision to affirm.

	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.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 employ

ment opportunities, linguistic styles, stories and folk lore.”  According to mother, American

Sign Language (“ASL”) is the “native language” of deaf culture — “[a]cquiring and perfect

ing 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).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 in

volved.  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 circum

stances 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.