Although Indiana family law safeguards the specific legal rights of both custodial and non-custodial parents in child custody disputes, and this state’s family law judges work conscientiously to protect those rights, the overriding and primary concern that guides the Indiana judges who hear child custody disputes is always going to be the best interests of the child.

If you are a non-custodial parent in the state of Indiana, even though you don’t live with your child, you have a legal right – with rare and precise exceptions – to spend time with your child. Provided there that is no evidence that you are an abusive or negligent parent, you have the right to parenting time under the Indiana Parenting Time Guidelines, which are designed to ensure that children spend a healthy amount of time with both parents.

However, Indiana judges are not obligated to adhere to the Indiana Parenting Time Guidelines when there is evidence of domestic violence, substance abuse, or other conditions that might place a child at risk. If the court determines that visitations may risk a child’s health or safety in any way, the court will probably order that those visitations must be supervised. The court may also order counseling or parenting classes, and unsupervised visits will not be allowed until the judge believes that the child is no longer at risk.

Sometimes, of course, problems arise regarding visitations. Kids may not always want to be with the non-custodial parent, or perhaps the custodial parent doesn’t want the visitations and tries to obstruct visits. Still, all parties must adhere to the court’s order regarding visitation. Either parent who wants the visitation order changed may seek a modification of the order by filing a motion with the help of an experienced Lake County family law attorney.

HOW MUCH AUTHORITY DOES A CUSTODIAL PARENT HAVE?

In Indiana law, physical custody refers to the parent that the child will physically reside with. In some cases, parents may share physical custody, or one parent will have “primary” physical custody and the other has visitation rights and “parenting time.” The parent who makes the major decisions for the child – educational, religious, and healthcare decisions – has “legal” custody, although parents may share joint legal custody, or one parent may have exclusive legal custody.

How much authority a custodial parent has will depend on several factors. For example, if a custodial parent wants to relocate out-of-state with the child or children, the first thing that parent should do is review the court’s custody order, which may or may not address the issue. An Indiana judge can order a custodial parent not remove a child from the court’s jurisdiction. An Indiana judge can also decide that a parent may retain custody only if that parent remains in Indiana.

UNDER WHAT CONDITIONS MAY A CUSTODIAL PARENT RELOCATE?

If relocation is not addressed in the custody order, a custodial parent who wants to move out-of-state (or more than one hundred miles from the current county of residence) with the child or children must file a “notice of intent to move” with the court and must have a copy sent to the non-custodial parent by registered or certified mail at least ninety days prior to the intended date for relocation. If the non-custodial parent has no objection to the relocation and does not file a counter-motion to oppose the move, the custodial parent is then free to move with the child or children.

However, if the non-custodial parent wants to block the move, he or she must file a counter-motion, and the court will schedule a hearing. Both sides will be allowed to state their cases and to offer evidence and testimony. The custodial parent must prove that the move is being made for a legitimate reason and not simply to get away from the non-custodial parent. If a judge agrees, the relocation may proceed.

If, however, a judge determines that the move is not in the child’s or children’s best interests, he or she will not agree to the relocation, and the child or children will remain in Indiana. In any dispute over child support, child custody, or visitation in this state, a court will consider the following factors (and any other pertinent factors) to determine what is in the child’s best interests:

  • any evidence of domestic violence by either parent
  • the physical and mental health of the child or children and both parents
  • the child’s age and gender
  • the parents’ wishes, and particularly if the child is age 14 or older, the child’s wishes
  • the child’s relationships and interactions with parents, siblings, and any others who may significantly impact the child’s best interests
  • the physical and mental health of the child or children and both parents
  • the child’s ability to adjust to his or her home, school, and community
  • any role that has been played by any de facto custodian, that is, any non-parent who has functioned in a parental role (such as a step-parent, grandparent, or aunt or uncle)

While they must ask permission to move their children out-of-state, custodial parents otherwise have a great deal of authority in Indiana. Indiana law specifies that a custodial parent may determine how a child is raised and may oversee the child’s education, healthcare, and religious training. However, in situations where the court has ordered shared or joint custody, those decisions about raising the child must be shared or joint decisions.

CAN A CUSTODIAL PARENT REFUSE TO ALLOW VISITATIONS?

In this state, if the non-custodial parent has failed to make child support payments, a custodial parent may not refuse to allow visitations. However, the custodial parent may file a contempt of court action with the help of a Lake County family law attorney. In the most egregious cases of non-payment, the court can impose jail time on a non-custodial parent for a failure to make child support payments.

If a custodial parent violates the custody order, what recourse does a non-custodial parent have? Of course, in the extreme case of a kidnapping or disappearance, you should call the police at once. In less severe circumstances, contact an experienced Indiana family law attorney.

If you believe the other parent is preparing to flee the state with your child or children, you may ask the court to require the other parent to post a bond, and you may also ask the court for an injunction and a temporary restraining order. Always, a court’s most important consideration in any custody dispute in this state will be the best interests of the child.