If you are separated from your child’s other parent and concerned about child custody, you should know that both parents, together, can control the outcome of how the child’s time will be split between them. The catch is, you have to be able to work together on a time-sharing plan.
What happens, however, if the two of you can’t agree? Even where both of you may mean well, if you can’t decide on a custody arrangement then a court will have to decide for you. In Indiana, courts do this by deferring to the best interests of the child.
A court determines a child’s best interest by considering factors like the child’s age, sex, and relationships with parents, siblings, or another significant person, like a grandparent. While the child’s sex is part of the overall custody evaluation a court must make, there is no presumption that a parent’s gender gives an advantage. In other words, a baby is not necessarily better off with its mother, just as it's not automatically best for an adolescent boy to be with his dad.
A court must also look at how the child may adjust to a change in home, school, or community, as well as the mental and physical health of everyone involved. The people involved might include a relative or guardian who has been caring for the child and has an interest in custody (called a de facto custodian).
Additionally, a court will hear what each parent wants. It will listen to the child’s wishes too, giving special consideration to a child who is at least 14-years-old. A court may even speak to the child outside the presence of the parents if it’s in the child’s best interest to do so.
Where there has been a history of domestic violence, that fact becomes part of the evaluation as well. There is a presumption that visitation between an abusive parent and the child will be supervised if this parent has been convicted of a crime involving domestic violence or if the child has been a witness to domestic violence. Although the abusive parent may earn unsupervised parenting time in the future, a court may require this parent to complete a batterer’s intervention program beforehand.
Once a custody order is in place, the parents must follow it. That does not mean, however, the particular arrangement is set in stone. As time goes on, what is best for the child may change. For this reason, an order can be modified (changed) on a permanent or temporary basis at any time if there has been a substantial change in any of the factors above and if the change is in the child’s best interest. A court may approve a change if one or both parents ask for it, but parents can’t just ignore a current order; modifications don’t happen automatically, even if the two parents agree to the change, they must go to court to have it approved.
A common reason for modifying a custody order has to do with a parent’s wish to move away. Although a move down the street may change little except for an address, even a move across town can complicate the time each parent spends with the child. If the non-relocating parent does not agree to the move, a court will have to settle not only the dispute over the move, but might also revisit the custody order.
Parents can’t, for example, keep the same 50/50 schedule they had while living in the same small town if one parent wants to move out of state. Once there is a dispute over the move, it’s up to the relocating parent to prove that the move is in good faith and for a legitimate reason – because of a better job, for instance. If the relocating parent can overcome this hurdle, then the other parent can prevent the move only by showing it is not in the child’s best interest.
While a parent may have to be away for long periods during military deployment, military service is not treated the same as a parent’s wishes to move away. A parent facing deployment may ask the court for a temporary order that delegates parenting time to a person who has a close and substantial relationship with the child during the deployment. If mom is in the military, for example, she could get an order giving her sister temporary custody. This order automatically ends when the parent comes home again. Also, a court may terminate this kind of temporary order if it finds that this arrangement is no longer in the child’s best interest.