Indiana law protects the rights of "custodial parents" (the parent that a child lives with or spends more time with) and "noncustodial parents" (parents who don’t live with their children a majority of the time, but have the right to spend regularly scheduled parenting time with them). Both kinds of parents have specific custody and visitation rights, but it is best interests of the children (not parental rights) that guide Indiana judges when they are making custody decisions.
If I have custody of my child, can we move to another state?
It depends. The first thing you’ll need to do is check your custody order to see if it addresses this question. That’s because Indiana law allows judges to make custody conditional, based on residence. An Indiana judge has the power to order that the custodial parent not remove a child from the court’s jurisdiction, and can also order that a parent only be allowed to keep custody if the parent remains in Indiana.
If your custody order doesn’t say anything like that and you still want to move, there are additional steps to follow first. If you are the custodial parent and you wish to move outside of Indiana (or 100 miles from your current county of residence), you must file a "notice of intent to move" with the clerk of court and provide a copy to your child's other parent, (the non-custodial parent who has parenting time or visitation rights). The copy must be sent by registered or certified mail, and must be delivered no later than 90 days before the planned move.
The noncustodial parent then has two options.
First, the noncustodial parent can choose not to file a motion opposing the request to relocate. That means that the custodial parent will be free to move with away with the child, as requested.
Second, if the noncustodial parent wishes to oppose the move, he or she must file a motion with the court. The court will schedule a contested hearing, where both sides will have the opportunity to argue their position and present testimony and evidence. The burden of proof is on the custodial parent. If the custodial parent doesn’t prove that the proposed relocation is in good faith, for a legitimate reason and in the best interests of the child, then the judge will not allow the move, and the child has to stay in Indiana.
The Court will look at all the following factors to determine what is in the child’s best interests:
- the age and sex of the child
- the wishes of the child’s parents
- the wishes of the child, with more consideration given to the child’s wishes if the child is at least 14 years old
- the interaction and interrelationship of the child with the child’s parents, 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 (a non-parent who assumes a parental role).
The judge may also choose to hear the testimony of the child, but does not have to if testifying would be traumatic.
As a custodial parent, how much authority do I have?
Indiana law specifically provides that a child’s custodial parent may determine the child’s upbringing, including education, health care and religious training. This assumes that you do not have joint (shared) custody with the other parent.
There is a limit, however. If the noncustodial parent files a motion with the court, and the court finds that the custodial parent’s authority must be limited lest the child suffer physical harm or impaired emotional development, then the court will place limits on the custodial parent.
I’m a noncustodial parent. What are my rights?
Even if you don’t live with your child most of the time, you have a constitutional right to spend time together. So long as you are not a neglectful or abusive parent, the courts are obligated to award you parenting time in accordance with the Indiana Parenting Time Guidelines, which is a formula aimed at making sure children spend a correct and healthy proportion of time with each parent. The Guidelines don’t apply to cases where there is family violence, substance abuse, a risk of flight (kidnapping), or other circumstances that would endanger the child.
Your right to parenting time can only be affected, under Indiana law, if the court finds that it’s reasonable to believe that visitation will endanger your child’s health or safety. If that’s the case, the court may choose to give you supervised parenting time and set up counseling, classes and other services. Unsupervised visits will only resume if and when the judge is satisfied that the child’s safety is no longer endangered.
Sometimes problems arise when kids don’t want to spend time with a noncustodial parent, or the custodial parent doesn’t want to make them go as scheduled. The bottom line is that everyone has to follow the existing court order. If anyone wants to have it changed, they should file a motion with the court asking for the terms and conditions of parenting time to be modified. The court will apply the best interest factors and may or may not agree with the request.
If I’m a noncustodial parent, can I care for my child while the custodial parent is at work?
Yes. Indiana law provides that if the custodial parent is unable to provide care for the child for some reason, like work, then the noncustodial parent must be offered the first opportunity to provide care before the custodial parent makes any other arrangements. If the noncustodial parent provides child care, however, it must be free of charge.
How do I get a passport for my child?
Either the noncustodial or the custodial parent may apply for a passport for their child. Ten days before applying, the applicant parent must file a "notice of passport application" with the clerk of the court that issued the custody order, and send a copy of the notice to the other parent.
What can I do if my child’s custodial parent violates the custody order?
First, you should contact your lawyer (if you have one) and possibly the police, depending on the severity of the violation (for example, missing a scheduled phone call doesn't warrant police involvement, but failing to drop the child off for visitation might). Second, if your child’s other parent has threatened to or actually taken the child out of Indiana in violation of a court order, or is undertaking planning or preparation that leads you to believe something is afoot, you can ask the court to require the custodial parent to post a bond. You can also apply for an injunction and temporary restraining order (TRO). If the custodial parent intentionally violates an injunction or a TRO, the court can consider that fact later on, if you ask for a change of custody.
If you have questions about child custody and visitation in Indiana, you should contact an experienced family law attorney for help.