Parents who separate or divorce must make tough decisions about custody. Parents can reach their own custody agreements or leave custody decisions up to a judge. When custody issues are presented in court, judges will base custody decisions on a child’s best interests.
This article provides an overview of child custody in Indiana. If after reading this article you have questions, contact a local family law attorney for advice.
A judge will decide two types of custody in your case: physical and legal custody. “Physical custody” refers to where the child physically resides, and the day-to-day care the child receives, such as bathing, meal preparation, and transportation. Parents can share physical custody equally or can arrange it so that one parent has primary physical custody, while the other has visitation.
“Legal custody” concerns a parent’s right to make important decisions in a child’s life, such as educational, cultural, medical, and religious decisions. Parents can share legal custody or one parent may have sole legal custody. A child’s best interests are at the heart of any custody decision in Indiana.
When judges face disputes about custody, Indiana custody laws requires them to apply a list of several factors to decide what’s in the child’s “best interests.” Neither parent enjoys a custody preference and mothers and fathers are on equal footing when it comes to custody. The factors include:
A judge may grant parents shared custody, also called “joint custody.” Parents can share physical and/or legal custody. For example, a judge may award the parents joint legal custody but one parent may receive sole physical custody. Alternatively, parents can both be awarded joint physical custody.
In a joint physical custody arrangement, the parents may have significant time with the child, but not necessarily equal. An example of a joint custody arrangement is where one parent has the child 3 nights per week and the other parent has the child 4 nights per week.
Essentially, 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.
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:
It’s important to know that just because a court awards two parents joint legal custody, it doesn’t mean they will be awarded shared physical custody. In Indiana, many custody awards grant the parents shared physical custody, while still allowing one parent sole physical custody. The type of custody awarded in your case will depend on what’s in your child’s best interests.
“Joint legal custody” refers to parents’ rights to make major decisions on the child’s behalf. When parents share legal custody, they have an equal say in matters involving the child such as where the child goes to school, medical treatment and care, and whether a child should be baptized in a certain religious faith.
Disagreements are bound to arise in joint legal custody arrangements. When they do, the custodial parent will have the final say. A judge will designate one parent as the “custodial parent” and the other as the “noncustodial parent”. The custodial parent is typically the one who spends more time with the child.
Under the Indiana child visitation guidelines, each parent is entitled to regular time with his or her child. “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. For more information about parenting time and visitation, The Indiana Judicial Branch has published The Indiana Parenting Time Guidelines.
Even in situations where a parent has substance abuse or anger management problems, a court will try to facilitate visitation. In these cases, a judge may follow the supervised visitation guidelines in Indiana. When it’s clear that traditional 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, or a private agency to be present during parenting time to ensure that its 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. See Ind. Code § 31-17-4-1 (2020.)
Under Indiana custody laws, it’s not always necessary to go to court to resolve a custody dispute. Sometimes your custody order will resolve the dispute by giving the custodial parent the final say. Other times parents are able to work out a mutually satisfying settlement of their custody issues with a mediator's help.
However, when parents absolutely can’t agree about what’s best for their child, they’ll need to go to court. Child custody cases in Indiana are tried before a judge who will decide the case without a jury. Judges sometimes get help when they’re making custody decisions. They can request reports from neutral outside entities, like custody evaluators, court-appointed guardians, and social service agencies.
Judges also have the power to order counseling for kids who are having trouble coping. A judge will follow the Indiana parenting guidelines and issue a written order or “decree” with the final decision.
Yes. If you want to make changes to a current custody or parenting time order in Indiana, 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.
The court will schedule a contested hearing on the motion. However, a judge won’t modify custody unless the child is endangered or a change would serve a child’s best interests. See Ind. Code § 31-17-4-5 (2020).
If you have questions about custody or modifying custody orders, you should contact an experienced family law attorney for help. Additional resources and help is available through the Indiana Self-Service Legal Center, Family Legal Resources.