Parents who separate or divorce in Indiana often have to make tough decisions about child custody. Courts much prefer that parents work this out between themselves. But if that's not possible, a judge will have to resolve the issue in a custody trial. Whichever route you take, you should know how child custody and visitation works in Indiana, and how judges decide these matters.
There are two categories of custody in Indiana: "legal custody" and "physical custody."
The fact that parents have joint legal custody doesn't mean that physical custody will be equally divided between them. (Ind. Code § 31-17-2-14 (2023).)
Parents who are getting divorced (or never married) always have the option of agreeing between themselves on how they'll handle child custody and parenting time. However, they must submit their parenting plan for a judge's approval in order to have it made part of a court order. (Otherwise, if one parent violates the provisions in the plan, it would be extremely difficult to enforce the agreement.)
Judges will generally approve parents' custody agreements as long as they appear to be in the child's best interests. In fact, Indiana courts have held that judges should defer to these agreements unless they're ambiguous, unworkable, or might endanger the child. And once a judge approves the agreement, the final custody order must follow its terms. In one Indiana case, the judge approved the parents' written agreement for joint physical custody but then issued a final custody order that awarded the mother only 44.5% of parenting time. The appeals court reversed that order, finding that the parents' agreement meant each of them should've had the same amount of time with their child. (Russell v. Russell, 23A-DC-578 (Ind. Ct. App. 2023).)
When parents can't reach an agreement on a parenting plan, a judge will have to resolve their dispute. Whenever a judge is making a custody decision, the priority must be "the best interests of the child." Indiana law requires judges to consider all relevant circumstances when they're deciding what's best for a child, including:
Indiana law doesn't favor either parent when the judge is deciding what's best for the child. Also, the law explicitly prohibits discrimination against parents with disabilities in custody decisions. (Ind. Code § 31-17-2-8, 31-17-2-8.1 (2023).)
In addition to the general best-interests considerations (outlined above), Indiana law also spells out special considerations when judges are deciding whether to award joint legal custody. Usually, if the parents agree to share legal custody, the judge will follow their wishes. But such an agreement won't necessarily settle the matter. Judges must also consider all of the following factors:
(Ind. Code § 31-17-2-15 (2023).)
Along with the general factors in Indiana law for deciding which custody arrangements would be in the child's best interests, the Indiana Supreme Court has adopted Parenting Time Guidelines to give additional guidance to judges when they're crafting parenting plans. The guidelines are "based on the premise that it is usually in a child's best interest to have frequent, meaningful and continuing contact with each parent."
Among other things, the guidelines discuss various factors judges should consider when they're deciding whether the child would benefit from a "shared parenting" arrangement—in which the child essentially lives with both parents, even though they're in separate residences. Those factors include:
The bottom line is that the courts want children to feel as secure and free from stress as possible after their parents' divorce or separation. If shared parenting can advance that goal, then great. If not, it might be best for the child to live mainly with the primary custodial parent, while the noncustodial parent will have the right to parenting time (traditionally known as visitation).
Parenting time is part and parcel of any custody case—a basic aspect of noncustodial parents' rights in Indiana. Under the state's custody laws, a noncustodial parent has the right to "reasonable parenting time" unless a judge has found that the parent might endanger the child, either by hurting the child's physical health or significantly impairing the child's emotional development. (Ind. Code § 31-17-4-1(a) (2023).)
This means that in the vast majority of cases, the real question isn't how to get visitation rights, but rather how parenting time will be structured.
Indiana's Parenting Time Guidelines also address the issue of how noncustodial parents will spend time with their children. The guidelines are based on the developmental stages of children, basically broken down into three groups:
The purpose of the guidelines is to provide a flexible model that can be adjusted to each family's unique needs and circumstances. They generally represent the minimum amount of time noncustodial parents should have with their children. But nothing in the guidelines prevents a different amount of parenting time, either in the parents' agreement or a judge's order.
The guidelines provide suggestions for parenting time schedules, again based on the children's stages of development. Some of the broader issues discussed are:
A comprehensive array of scenarios that can arise in the course of parenting time are also addressed—things parents might not have thought about in advance.
For example, one question comes up fairly often: Can a noncustodial parent care for the child while the custodial parent is at work? Assuming it's practical in terms of distance and time, the answer is yes. Indiana's guidelines allow a noncustodial parent the first opportunity to provide child care (as additional parenting time) if the custodial parent or a responsible family household member is unable to provide care for the child for some reason, like work.
Another issue that crops up fairly often—and can impact parenting time—is a parent's desire to move. Indiana law doesn't allow a custodial parent to interfere with visitation. This means a custodial parent can't deprive the noncustodial parent of regular visits by moving out of state. In other words, there are limits to custodial parents' rights in Indiana.
If there's only a minimal distance involved (and it allows the children to remain in their current school), it's not usually a big deal. But if it's likely to hamper a noncustodial parent's ability to see the children, the courts may have to intervene. (Ind. Code § 31-17-2.2-1 (2023).)
Learn more about Indiana's laws on parental relocation, including notice requirements when a parent with any custody rights plans to move.
Indiana's Parenting Time Guidelines don't apply to situations involving family violence, substance abuse, risk of flight with a child, or any other circumstances the judge reasonably believes could endanger the child's physical health or safety, or significantly impair the child's emotional development. In those types of cases, a judge will customize parenting time to fit the particular circumstances of each case. This could include ordering supervised parenting time.
Supervised parenting time is conducted in a safe environment, overseen by a third party supervisor (often a social worker). If a noncustodial parent is prone to violence, however, additional security would be provided. In many cases, the supervisor won't interact with the parent or child but simply will keep a watchful eye to ensure things are going smoothly.
If a judge grants parenting time to a noncustodial parent who's been convicted of child molestation or exploitation, the law presumes that parenting time should be supervised. In other words, it's up to the noncustodial parent to convince the judge that supervision isn't necessary. But if the parent has been convicted of those offenses within the past five years, the court must order supervised parenting time. (Ind. Code § 31-17-4-1(d), (e) (2023).)
If the parents don't have joint legal custody, the custodial parent determines how the child will be raised unless the parents agreed otherwise (in writing) when the custody order was entered. (Ind. Code § 31-17-2-17(a) (2023).)
But if a disagreement later arises over the child's upbringing, the noncustodial parent can file a motion (written legal request) with the court, seeking to limit the custodial parent's authority. The noncustodial parent would have to convince the court that not making a change would endanger the child's physical health, or that the child's emotional development would be significantly impaired. (Ind. Code § 31-17-2-17(b) (2023).)
It's not always necessary to go to court to resolve a custody or parenting time dispute. Sometimes parents are able to work out a mutually satisfying settlement of their custody issues with a mediator's help. In fact, under the Parenting Time Guidelines, parents may be required to participate in custody mediation in certain situations.
If parents absolutely can't agree about what's best for their child, even after trying mediation, they'll need to go to trial. A judge will then decide the issues for them, sometimes with the help of neutral outside sources, like custody evaluators, court-appointed guardians, or social service agencies.
The evolving needs of parents or children—especially as kids get older—may warrant changes to the parenting plan. But that requires seeking a modification and getting a judge to issue a new order. As with an original custody order, you and the other parent may agree on a change, but you'll need to submit your written agreement for a judge's approval.
If you simply change parenting time on your own or violate any provisions in the current order, you could be held in contempt of court, possibly resulting in fines or even jail time.
In that same vein, any interference with existing custody or parenting time rights, such as by withholding visitation, could lead to contempt of court. Also, it's a crime in Indiana to fail to return a child after visitation, or to take, detain, or hide a child with the intent to deprive the other parent's rights to custody or parenting time. (Ind. Code § 35-42-3-4(b) (2023).)
If you want to make changes to a current custody order in Indiana, you'll need to file a motion seeking a modification. A judge may not modify the order unless:
After concluding that a change is warranted, the judge must again consider the best-interest factors when deciding on the modification. (Ind. Code § 31-17-2-21 (2023).)
If it would be in the child's best interests, a judge may modify an order granting or denying parenting time rights. However, judges may not restrict these rights unless they find that parenting time might endanger the child's physical health or significantly impair the child's emotional development. (Ind. Code § 31-17-4-2 (2023).)
Custody and parenting time are obviously very serious issues. Because most lay people are unfamiliar with Indiana's laws and court procedures, having to deal with them can add more anxiety and tension to an already emotionally charged situation. And remember, it's not just the parents who are feeling the strain of a custody battle. The children are impacted as well, often more deeply than some people may realize.
It's always best if you and the other parent can resolve your disagreements without a court battle, either on your own or with a mediator's help. But if you can't, it may well be in your best interest to at least speak with a knowledgeable family law attorney who can explain your rights and responsibilities, and the best way to move forward.