What’s the difference between physical and legal custody?
“Physical custody” refers to the place where the child physically resides and the day-to-day care the child receives, such as bathing, meal preparation, and transportation.
“Legal custody” concerns the right of a parent to make important decisions in a child’s life, such as decisions about the child’s education, religious and cultural upbringing, and health and wellness.
What does it mean if custody is “sole” or “joint”?
In Indiana, the distinction between sole and joint custody is very important. A “joint” custody award means the parties will share custody to some degree. But a “sole” custody award means that one parent is given all or most rights.
If I don’t agree with how my child is being raised, do I have to go to court?
In Indiana, it’s not necessary to go to court to resolve a custody dispute; many parents are able to work out a mutually satisfying settlement of their custody issues. Other parents are able to settle custodial disputes through alternative measures, such as mediation.
However, when parents absolutely can’t agree about what’s best for their child, they go to court. In the State of Indiana, custody cases are tried before a judge who decides the case without a jury and issues a written order, or “decree” that contains the final decision.
Judges sometimes get help when they’re making custody decisions. They can request reports from neutral outside entities, like private evaluators, court-appointed guardians, and social service agencies. They also have the power to order counseling for kids who are having trouble coping.
How does a judge decide who should get physical custody?
When Indiana judges face disputes about custody, the law requires them to apply a list of eight factors to decide what’s in the child’s “best interests.” Neither parent enjoys a “presumption” (an assumption) that they are superior to the other parent. The factors are:
- the age and sex of the child
- the parents’ wishes
- the child’s wishes, with more consideration given to the wishes of a child that is at least 14 years of age (judges sometimes meet with children privately to ask about this)
- the interaction and interrelationship of the child with his or her parent(s), siblings, and any other person who may significantly affect the child’s best interests
- the child’s adjustment to home, school, and community
- the mental and physical health of all individuals involved
- evidence of a pattern of domestic or family violence by either parent, and
- evidence that the child has been cared for by a “de facto custodian” (i.e., someone who is providing care but doesn’t have legal rights to the child). If there is clear and convincing evidence (very strong proof) that a child has been cared for by a de facto custodian, the court must examine an additional four factors as set forth in Indiana Code 31-17-2-8.5(b)(1) through (4).
How do courts decide if legal custody should be sole or joint?
A judge will award joint legal custody only if it’s in the child’s best interests. If parents want joint legal custody, it’s very important that they show they’re able to get along with one another. To decide whether to award legal custody to one or both parents, the court will look at some additional factors, including:
- each parent's fitness and suitability
- whether the parents are willing and able to communicate and cooperate in advancing the child’s welfare
- the child’s wishes, with more consideration given if the child is at least 14 years old
- whether the child has established a close and beneficial relationship with both parents
- whether the parents live in close proximity to each other and plan to continue to do so, and
- the nature of the physical and emotional environment in each parent’s home.
It’s important to know that just because a court awards two parents joint legal custody, it does mean they will be awarded equal physical custody. Indiana law is very specific on this point, and it’s common for one parent to have sole physical custody while sharing joint legal custody with the other parent.
What is parenting time in Indiana?
“Parenting time,” also known as visitation in other states, is the time that parents without physical custody spend with their children. In Indiana, a parent who doesn’t have physical custody of a child is still entitled to reasonable parenting time with the child, unless the court holds a hearing and decides that parenting time would endanger the child’s physical health or “significantly impair” (cause major harm) to his or her emotional development.
What is supervised parenting time in Indiana?
If parenting time would endanger the child’s physical health or significantly impair emotional development, a judge may order “supervised parenting time” until the situation improves, which means that all visitation must be supervised by a third party. The court may order a social service agency, juvenile court staff, the local probation department, or a private agency to be present during parenting time to ensure that it’s safe and healthy. It’s also common for the parties to agree to have parenting time supervised by a trusted individual, like a grandparent. The court can also order parenting time to occur at a secure, neutral location.
Is it possible to change custody or parenting time?
Yes. If you want to make changes to a current custody or parenting time order, you’ll need to file a motion to modify (change) custody or parenting time and prove to a judge that there has been a change of circumstances, which warrants changing the existing arrangements.
If you have questions about custody or modifying custody orders, you should contact an experienced family law attorney for help.
The Indiana Code, Article 17. Family Law: Custody and Visitation Rights (presented by the Indiana Office of Code Revision, Legislative Services Agency)
The Indiana Parenting Time Guidelines (presented by the Indiana Judicial Branch)
Indiana Self-Service Legal Center, Family Legal Resources (presented by the Indiana Judicial Branch)