Tavitas, J.
In this dissolution-of-marriage case, Jamie Marie Russell (“Mother”) and Leonard Alan Russell (“Father”) entered into a partial mediated settlement agreement (“Partial Mediated Agreement”) in which they agreed to share “joint physical custody” of the parties’ daughter, K.R. (“Daughter”). The trial court accepted and approved this agreement. The trial court, however, in both its subsequent provisional order and final dissolution decree, sua sponte addressed the issue of physical custody and awarded Mother less parenting time than that awarded to Father. Mother appeals and argues that, by granting unequal parenting time, the trial court violated the terms of the Partial Mediated Agreement. We agree with Mother that the Partial Mediated Agreement called for the parties to have equal parenting time and that the trial court’s custody order awarded Mother less than equal parenting time. Accordingly, we reverse and remand.
Issue
Mother presents one issue for our review, which we expand and restate as the following two:
- Whether the parties’ agreement to share “joint physical custody” means that the parties agreed to have equal parenting time with Daughter.
- II. Whether trial court had authority to award Mother less parenting time than Father after the court accepted and approved of the Partial Mediated Agreement.
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Mother notes that both parties agreed to share “joint physical custody” of Daughter in the Partial Mediated Agreement and argues that this term means equal parenting time. [Footnote omitted.] We agree.
The term “joint physical custody” does not appear in any statute or court rule that we are aware of, nor does the term appear in the Parenting Time Guidelines. See Miller v. Carpenter, 965 N.E.2d 104, 113 (Ind. Ct. App. 2012) (noting that the appellant cited no authority defining the term “joint physical custody”). In Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App. 2010), we held that by increasing the father’s parenting time to seven overnights in any given two-week period, the trial court had ordered a de facto modification of custody to “joint physical custody.” In Miller, another panel of this Court noted that our opinion in Julie C. “does not suggest what, if anything other than a fifty-fifty split constitutes joint physical custody.” Miller, 965 N.E.2d at 111. See also 10A Ind. Law Encyc. Divorce § 190 (noting that “[w]here divorced parents have joint physical custody of their children[,] each parent has custody of the children approximately 50% of the time.”). Thus, the term “joint physical custody” means that the parties will share equal parenting time.
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Mother also claims that the trial court was without authority to award her less parenting time than that awarded to Father. Mother notes that the trial court accepted and approved the Partial Mediated Agreement, which called for “joint physical custody,” and that neither party petitioned the trial court to modify physical custody.
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In the final dissolution decree, the trial court indicated that it was following the Partial Mediated Agreement and ordered that the parties have “joint physical custody” of Daughter. Appellant’s App. Vol. II p. 50. The trial court, however, then proceeded to award Mother parenting time that was not equal to that awarded to Father, i.e., parenting time pursuant to the Parenting Time Guidelines with an additional overnight on Sundays when it was Mother’s weekend with Daughter and an additional overnight every week during the mid-week parenting time.
The trial court estimated that this arrangement would give Mother parenting time consisting of 176 overnights with Daughter in a given year. This is an approximate 52% – 48% split of parenting time. Mother, however, notes (and Father does not dispute) that the trial court’s decree actually gives her only 162.5 overnights with Daughter per year, which constitutes only 44.5% of the parenting time.
The term “joint physical custody” might not require a perfectly equal 50% – 50% split of parenting time, but we are unable to say that granting Father 55.5% of parenting time and Mother 44.5% of parenting time is consistent with the intention of the parties to share “joint physical custody” of 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.
Conclusion
The parties entered into a Partial Mediated Agreement that settled the issue of child custody by agreeing to “joint physical custody.” The trial court accepted the Partial Mediated Agreement. In its final dissolution decree, the trial court stated that it was awarding the parties “joint physical custody” pursuant to the Partial Mediated Agreement. Yet the trial court awarded Mother over ten percent less parenting time than that awarded to Father. We find that this is not “joint physical custody” as agreed to by the parties and as accepted and approved by the trial court. Accordingly, we reverse the trial court’s award of non-equal parenting time and remand with instructions that the trial court award equal parenting time pursuant to the Partial Mediated Agreement.
Reversed and remanded with instructions.
Bailey, J., and Kenworthy, J., concur.