dissenting in part and concurring in part.
I dissent with respect to affirmance of the denial of Gregory Gollnick's motion for summary judgment.
The majority applies the holding of Buffalo v. Buffalo (1982) 4th Dist. Ind.App., 441 N.E.2d 711. In doing so it erroneously assumes that Gregory is a non-custodial *651parent. The record makes clear that Gregory and Verna had joint legal custody. Verna had mere physical custody. It is established that legal custody, whether sole or joint, carries with it not only certain responsibilities, but certain privileges as well, Among these privileges are the right to participate in decisions concerning education, religious training and the like. Indiana and California statutory provisions are strikingly similar in this respect. California law provides as follows:
"(a) The Legislature finds and declares that it is the public policy of this state to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy." Cal.Civ.Code § 4600 (West 1987 Supp.)
In keeping with this policy declaration, the California General Assembly made provi-gion for joint legal custody and defined it:
"(5) 'Joint legal custody' means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.
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(g) In making an order for custody with respect to both parents, the court may award joint legal custody without awarding joint physical custody." Id. at § 4600.5.
The Indiana provision, LC. 31-1-11.5-21 (Burns Code Ed.Repl.1987) reads in part:
"(f) The court may award legal custody of a child jointly if the court finds that an award of joint legal custody would be in the best interest of the child. As used in this section, 'joint legal custody' means that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care, and religious training. An award of joint legal custody does not require an equal division of physical custody of the child."
Even were we to apply the so-called "modern rule" espoused by Chief Judge Ratliff to the issue of parental immunity, it is not at all clear that Gibson v. Gibson (1971) 3 Cal.3d 914, 479 P.2d 648, 92 Cal.Rptr. 288, which abolished immunity remains an open invitation to child-parent negligence suits. The above quoted amendment to the California Custody statute was enunciated as a matter of policy in 1979. It might well be viewed as somewhat inconsistent with the absolute abrogation of parental immunity. Additionally, some authorities suggest that intrafamily immunity may have experienced a reincarnation of sorts. Inroads in this regard have been observed with respect to insurance exclusionary provisions. See Employers National Insurance Co. v. Cornett (1985) 172 Cal.App.3d 245, 218 Cal.Rptr. 185, 189.
In any event, it would seem that included in the concept of custodial parenthood, even though that custody is shared, is the right to foster a reasonably healthy and affectionate familial relationship. At least by implication, a corollary right would seem to attach-the right to be free of the divisive and accusatorial status created by a negligence lawsuit. Gregory was a custodial parent with custodial rights. For this reason Buffalo v. Buffalo, supra, 441 N.E.2d 711, is inapplicable.
Even if it were otherwise, a non-custodial parent is still a parent. The relationship is worthy of acknowledgment and, I think, encouragement. Unless the parental rights have been terminated, or at a minimum unless visitation and other contact has been curtailed, the non-custodial parent should have every right to the protection afforded other parents against unwarranted disruptive influences. It is of no moment that the economic party in interest may be some faceless insurance company. It is of moment that for the lawsuit to succeed, the child must assert and prove that his parent was negligent, or willful and wanton in the conduct toward the child. The relationship of a non-custodial parent with child is delicate enough as is. It is subject to stresses and impediments naturally brought about by separation and lack *652of continuity. The relationship is certainly not strengthened or nurtured by adversary litigation which requires assertions that the parent lacks due care and evidences disregard for the child's safety and well-being.
In short, I dissent from the holding by the majority that a non-custodial parent is automatically shorn of parental immunity. In this regard I would decline to follow Buffalo v. Buffalo, supra, 441 N.E.2d 711, and would reject its rationale.
I concur in the holding which reverses the ruling upon the Motion for Summary Judgment filed by John and Margaret Gollnick.
The premises of the Gollnicks, to which Karen was an invited visitor, did not give rise to the injury. The case does not, therefore, involve any duty imposed by reason of ownership of the premises. The duty owed, if any, is that of reasonable care under the circumstances. I agree with my colleagues that, as a matter of law, no breach of Gollnicks' duty to exercise reasonable care occurred and that their motion for summary judgment should have been granted.
I would remand to the trial court with instructions to grant summary judgment for all defendants.