Nothing is more important than your child. When a child custody dispute comes before the courts in Indiana, the court’s decision will reflect what it believes are the “best interests” of the child. Below are some of the most frequently asked questions – and answers – regarding child custody in Indiana. Of course, anyone who expects to be involved in a contested divorce or a custody dispute in this state should obtain the advice and services of an experienced Indiana child support attorney.
Q: What is the difference between legal custody and “physical” custody?
A: Under Indiana law, physical custody refers to where the child or children physically reside. In many cases, divorced parents share physical custody or one parent has “primary” physical custody and the other parent has “parenting time” or visitation. The parent who makes major decisions regarding the child’s life – such as educational, religious, and healthcare decisions – has “legal” custody, although parents can share joint legal custody or one parent may have exclusive legal custody.
Q: How does an Indiana judge decide which parent should have physical custody?
A: Going into a child custody dispute in the state of Indiana, neither parent enjoys a “presumption” that one or the other is naturally the better parent simply by virtue of his or her gender. The court’s duty is to consider the best interests of the child in making a custody determination. Indiana law requires judges to use this list of eight items to help them decide what is in a child’s best interests:
- the gender and age of the child
- the child’s wishes (more consideration is given to children at least 14 years old)
- the parents’ wishes
- the interactions and relationships of the child with parents and siblings
- the child’s adjustment to home, school, and community
- the physical and mental health of everyone involved
- 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” (who has provided care but has no legal rights to the child)
Q: Will the child’s own wishes regarding custody influence the court?
A: When parents get a divorce in the state of Indiana, until a child reaches the age of 18, the court makes the determination regarding custody. However, when a child is 14 or older, consideration will be given by the court to the child’s wishes.
Q: At what point in the process is child custody decided?
A: Temporary custody may be decided as soon as the parents’ separation is in effect. The permanent custody arrangement is a part of an Indiana court’s final Decree of Dissolution. Indiana courts usually accept both temporary and final custody arrangements when both parents agree. When they don’t, the court may issue a temporary order, governing the provisional period, that will remain in effect through the divorce process until the court enters its final divorce decree.
Q: If both parents share custody, how is child support arranged?
A: If the parents share custody and their incomes are similar, they may be able to avoid a separate child support obligation. When parents can reach their own agreement, Indiana courts will usually “sign off” on that agreement provided it is in the child’s best interests. In a disputed divorce, one parent may be ordered to pay child support based on an income formula that considers each parent’s income and the amount of parenting time each parent exercises.
Q: Do divorcing parents need a parenting plan?
A: It’s a good idea. A parenting plan spells out the amount of parenting time or visitation that divorced parents will have with their children. Divorcing parents should always attempt to work together on a plan that fits their schedules and allows the child to have positive relationships with both parents. If the parents cannot reach an agreement, an Indiana court will impose its own decision about child custody and visitation as a part of the final Decree of Dissolution.
Q: Can a custodial parent refuse to allow visits if child support payments are not made?
A: No, not in the state of Indiana. Visitation may not be denied on the basis of failure to pay child support. However, if the non-custodial parent fails to meet the child support obligation, the spouse may file a contempt of court action with the help of an Indiana family law attorney. In the most egregious cases, the court can order jail time for a parent’s failure to make child support payments.
Q: Can a child custody order be changed at a later date?
A: Yes, if there’s a good reason. After custody and visitation questions have initially been resolved, either by mutual parental agreement or by the court, specific procedures must be followed to change or “modify” the arrangement. A parent who asks the court for a child custody modification must show that circumstances have changed substantially enough to require the modification. If a child custody modification is contested, a hearing will be scheduled, and a parent will need the services of an experienced family lawyer.
Q: Do grandparents have any legal custody and visitation rights in Indiana?
A: The U.S. Supreme Court – in the case Troxel v. Granville – found that grandparents do not enjoy an absolute legal right to visit their grandchildren over the objections of parents. Because the courts put a parent’s legal rights first, acquiring grandparental visitation rights can be quite challenging in some cases. However, there are instances where grandparents may have limited visitation time approved by the courts. Grandparents seeking visitation rights should speak with a good family lawyer about their specific situation.
Q: If a parent is considering or expecting divorce, what can that parent do now to get a good custody agreement?
A: Actively work to maintain your relationship with your child and your involvement in your child’s life. Spend all of the time that you can with your child to make your place in the child’s life clear and obvious to the court.
Q: What else should a parent know and do before a child custody hearing?
A: The court will investigate your role in your child’s life, your own physical and mental health and stability, and the contribution you make to your child’s upbringing. A child custody dispute can be the most acrimonious part of a divorce. You’ll need to guard your emotions and prove to the court that your child’s best interests are best served by assigning the child’s custody to you.