Custody / Parenting Time
There is no chart or guide that simply resolves a custody dispute. Child support has guidelines and a worksheet to calculate support. The determination of which parent will have custody of a child does not lend itself to a straightforward analysis.
To start with, it is important to understand the two types of custody that must be resolved in any divorce or paternity case. First there is physical custody, which is involves which parent the child will be with and when. Second is legal custody (discussed in more detail in another section of this site) which pertains to decision making concerning the child.
This section will focus on physical custody. While there is not a discrete set of rules that determines which parent will have primary physical custody, Indiana law lists certain factors that should be considered. These factors and our comments thereon are as follows:
The age and sex of the child.
- In practice, our experience is that this factor is rarely determinative of which parent is awarded custody. However, on occasion, the gender of the child can play a role.
The wishes of the child’s parent or parents.
- This is another factor that does not typically play a large role in determining custody. Simply put, if the court is considering this factor, it means the issue of custody is in dispute and it is safe to presume both parents have requested custody.
The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
- Now we are getting to the important factors. It is important to keep in mind that a child 14 years of age or older is not granted the authority to determine custody. The “wishes” of a child can be considered, though, with a child 14 or older potentially being given a larger voice in which parent they will live with primarily.
The interaction and interrelationship of the child with:
- The child’s parent or parents;
- The child’s sibling; and
- Any other person who may significantly affect the child’s best interests.
- This is potentially another big factor. The child’s relationship with each parent will obviously be important. Beyond that, the relationship a child has with siblings or other people in the child’s life can play a role as well.
The child’s adjustment to the child’s:
- School; and
- Sometimes the fact that a child has lived in the same home for his/her entire life can be important. Also, if a child would have to change schools or move to a new community if custody is awarded to one parent can play a role in a custody determination.
The mental and physical health of all individuals involved.
- With respect to the child, the existence of a condition which requires special attention can influence a custody determination. With respect to the parents, evidence of a mental or physical ailment that could impair the ability to parent in any fashion can be persuasive.
Evidence of a pattern of domestic or family violence by either parent.
- This factor is self-explanatory. Domestic violence towards the child should result in criminal charges and would certainly be highly influential on a custody determination.
Evidence that the child has been cared for by a de facto custodian.
- This factor would involve proof that the child has been cared for by someone other than a parent.
That may seem like a definitive list when it says above there is no specific guideline to determining custody. A close examination of the factors, however, reveals room for interpretation and discretion. For instance, how much weight should be placed upon the child’s adjustment to school and community? What sort of health malady is important enough to influence a decision regarding custody? Determining what is in the best interests of a child cannot be reduced to a mathematical equation.
This section is intended to be a broad overview of how a custody dispute is resolved. Every case is unique and if custody is disputed, it would be very helpful to consult with an attorney. Please contact us if you have questions concerning an initial determination or if your case may involve or does involve a custody dispute.
If either by agreement or court order one parent has primary physical custody of a child, then when does the other parent get to see the child? “Parenting time” is the term used by the State of Indiana to mean visitation. The non-custodial parent, meaning the parent with 49% or less of the total available time with the child, will have a schedule of parenting time with the child.
The Indiana Parenting Time Guidelines address various topics such as parenting time schedules, division of holidays, transportation, and other matters involving parents and their children. It is important to keep in mind that the schedules set forth in the Guidelines are considered the minimum amount of time a non-custodial parent should be entitled to exercise. This minimum time schedule for children 3 years of age or older can be summarized as follows: every other weekend, one evening per week, half of the summer, split the holidays. By numbers, it equates to 98 overnights per year, or 27% of the year.
It is more common than not that the non-custodial parent will want more than 98 overnights per year. And in practice, it is more common than not that, presuming there are no substantial concerns regarding parenting skills, that the non-custodial parent will indeed have a schedule that includes more than 98 overnights per year.
Generally speaking, a court will enter a parenting time order based on what it considers to be in the best interests of the child. This is a vague and broad standard by necessity as it would be nearly impossible to formulate an equation or checklist to determine a parenting time schedule. Factors that can play a role in this determination include the non-custodial parent’s involvement in raising the child prior to the parenting time decision, the distance between the parent’s homes, and the distance of the parent’s home from the child’s school.
On March 1, 2013, a revised set of Guidelines will be in effect. The new Guidelines modify certain aspects of holiday schedules and incorporate terms related to high conflict situations. If your case already has a parenting time order prior to March 1, 2013, then the soon-to-be “older” version of the Guidelines will still apply until a new order is entered.
Please contact us if you have questions concerning the Indiana Parenting Time Guidelines or how the Guidelines are applied.
Legal custody can be informally defined as which parent makes the “big ticket” decisions – school, medical, religion. Much more often than not, parents will exercise joint legal custody. This means that each parent has a say in making those big decisions.
Joint legal custody also means that neither parent possesses the tie-breaking vote. Ideally, parents will be able to communicate concerning the best interests of the child and reach a resolution. If an agreement cannot be reached, then one or both parents can ask the judge to make a decision. Keep in mind, however, judges are not well-positioned to make a decision about school or other such matters. That is not because any particular judge is not capable. Rather, the judge will only have limited information about you and your child prior to making a ruling. Thus, it is highly preferable to resolve legal custody disputes on your own or with the assistance of a mediator.
While joint legal custody is the norm, there are circumstances which justify sole legal custody. The most common situation is when the parents are simply incapable of communicating effectively concerning their child. This could involve one parent being verbally abusive, or perhaps one parent not actively participating in the decision-making process.
One parent having sole legal custody does not mean the other parent should not be kept informed or somehow has had their parenting time rights terminated. That is not the case. Sole legal custody means that in the event of a disagreement, the parent who has sole legal custody essentially holds the tie-breaking vote that does not exist in a joint legal custody situation. Both parents should always keep each other informed of circumstances, both big and small, involving the child.
Please contact us if you have questions concerning legal custody or how a determination as to sole versus legal custody is made.
As with child support, a custody order is always modifiable and no order is considered a final and permanent determination. Having said that, once an initial custody determination has been made, modifying that order is not a simple task.
Indiana law sets forth that to modify custody, two conditions must exist. First, the modification must be deemed to be in the best interests of the child. That is a broad standard, but in essence the court must be convinced that changing custody must benefit the child in some fashion. The best interests of the child is always a consideration in custody matters.
Second, and the more difficult requirement to satisfy, is that it must be shown that there has been a “substantial change in circumstances” in one of the factors utilized in making an initial custody determination, which are discussed here. The phrase substantial change in circumstances is not defined in the statute. It is a matter of discretion for the judge to determine whether any particular facet of the parent’s or child’s life has changed significantly enough to find that a modification of custody is warranted. Examples, but by no means an exclusive list, of a substantial change in circumstances are a significant deterioration of some sort in the home environment of the custodial parent or a marked decrease in the academic performance of the child.
To request a modification of physical custody, the non-custodial parent would file a petition with the court. If there is not an agreement to modify custody, then the matter would proceed to a hearing wherein the judge would hear evidence and subsequently issue a ruling.
It is also possible to modify legal custody. Much as with physical custody, the parting requesting the change must show that some circumstance has significantly changed since the prior order.
Please contact us if you would like to discuss whether your circumstances might support a modification of physical and/or legal custody.