Custodial Rights and Parenting Time in Indiana

Learn about the rights of both the custodial parent and non-custodial parent in Indiana.

Indiana law protects the rights of both "custodial parents" (the parent who primarily lives with the child) and "noncustodial parents" (the parent who spends less time with the child). Both types of parents have specific custody and visitation rights, but a child’s best interests—not parental rights—will guide Indiana judges making custody decisions.

Determining a Child’s Best Interests in Indiana

Indiana parenting guidelines require a judge to look at a child’s best interests when making any custody decision. A judge will examine the following factors to determine what kind of custody arrangement is appropriate:

  • the child’s age and health
  • the child’s adjustment to home, school and community
  • 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
  • each parent’s wishes
  • the child’s wishes, particularly if the child is at least 14 years old
  • each parent’s physical and mental health
  • evidence of a pattern of domestic or family violence by either parent
  • evidence that the child has been cared for by a de facto custodian (a non-parent who assumes a parental role), and
  • any other relevant factor.

A judge may also choose to hear the testimony of the child, but does not have to if testifying would be traumatic.

Following Indiana’s parenting guidelines, a judge will decide both legal custody (parent’s decision-making rights) and physical custody (where the child lives) based on the child’s best interests. Also, the parent who is designated as the “primary custodial parent” will have the final say in decisions involving the child if the parents can’t agree.

How Much Authority Does a Custodial Parent Have?

A custodial parent’s authority depends on your custody arrangement. Specifically, if you and your ex share joint physical and legal custody, a custodial and noncustodial parent may have almost identical rights.

In cases where the custodial parent has sole legal and/or physical custody, a noncustodial parent’s rights will be much more limited. For example, only a custodial parent or parent with joint legal custody can make educational, religious, medical, or legal decisions on the child’s behalf.

However, there’s a limit to a custodial parent’s authority. For example, a custodial parent can’t act in a way that harms the child or cause custodial interference by preventing visits with the noncustodial parent.

Custodial Parents’ Rights to Relocate in Indiana

In some situations, a custodial parent has the right to relocate with the child. However, it’s important to check the terms of your custody order. Some orders will explain a parent’s right to relocate and his or her obligation to notify the noncustodial parent about a potential move out of state. If your custody order is silent on relocations, you’ll need to file a notification and request to relocate with the court.

Both parents have custody and visitation rights in Indiana. Indiana law doesn’t allow custodial interference with visitation. This means a custodial parent can’t deprive the noncustodial parent of regular visits by moving out of state.

Unless your custody order allows a parent to relocate, a judge has the power to prevent the custodial parent from removing a child from the court’s jurisdiction. Additionally, the court can establish parenting guidelines where a custodial parent may only keep custody if the parent remains in Indiana.

Filing a Relocation Request

The custodial parent planning to move outside of Indiana (or 100 miles from your current county of residence), must file a "notice of intent to move" with the clerk of court and serve a copy on the child's other parent. There are timelines for filing and serving the paperwork.

If your order doesn’t specify a notice time frame, you should plan to deliver the relocation notice no later than 90 days before the planned move. See Ind. Code § 31-17-2.2-0.5 (2020.)

Responding to a Relocation Request

The noncustodial parent can ignore the other parent’s relocation request. By not responding, the noncustodial parent is essentially allowing the other parent to freely move with away with the child, as requested.

Alternatively, 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 who must justify the move. If the custodial parent can’t prove that the proposed relocation is in good faith, for a legitimate reason, and serves the child’s best interests, then the judge will not allow the move and the child must stay in Indiana.

How Much Authority Does a Noncustodial Parent Have?

Even if you don’t have physical or legal custody rights over your child, as the noncustodial parent, you still have visitation rights in Indiana. 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 guidelines, which is a formula aimed at making sure children spend a healthy proportion of time with each parent.

Indiana’s parenting guidelines won’t apply in cases where there is family violence, substance abuse, a risk of flight (kidnapping), or other circumstances that would endanger the child. See Ind. Code § 31-17-4-1 (2020.)

In Indiana, your right to parenting time can only be limited if the court finds that visitation will endanger your child’s health or safety. For example, if there’s been child abandonment by the noncustodial parent, a court may allow only supervised parenting time and set up counseling, classes, and other services. Based on Indiana’s child abandonment laws, unsupervised visits would only resume if and when the judge is satisfied that the child’s safety is no longer endangered.

Sometimes problems arise when a kid doesn’t want to spend time with a noncustodial parent, or the custodial parent doesn’t want to make a child go to scheduled visits. Custodial interference can happen when the custodial parent prevents visits between the child and noncustodial parent.

Custodial parents aren’t allowed to interfere with a noncustodial parent’s visitation rights. The bottom line is that everyone has to follow the existing court order. To change an existing custody order, a parent will need to file a motion to modify parenting time with the court. A judge will apply the best interest factors in order to decide whether to change custody.

Can a Noncustodial Parent Care for The Child While the Custodial Parent Is at Work?

Yes. Indiana parental rights allow a noncustodial parent the first opportunity to provide child care if the custodial parent is unable to provide care for the child for some reason, like work. However, if the noncustodial parent provides childcare he or she can’t charge for the childcare.

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 the 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 the country 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. See Ind. Code § 31-17-4-5 (2020.)

If you have additional questions about child custody and visitation in Indiana, you should contact an experienced family law attorney for help.

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