Long ago, Courts often followed the practice of awarding custody of children of tender years to the mother and teenage children to the parent of the same sex. Today, and for many years now, Indiana Courts determine custody based upon the best interest of the child. There is no presumption in favor of either parent.
The List of Factors Used By Indiana Courts in Awarding Custody
The Court considers the following factors in making its determination as to what is in the child’s best interest:
- The age and sex of the child. Perhaps the old rule of thumb is not entirely dead?
- The wishes of the child’s parents. Note, the Court is not bound by the wishes of the child’s parents.
- The wishes of the child, with more consideration given to the child’s wish if the child is at least fourteen (14) years of age. Courts vary greatly on whether or not they place much weight on the wishes of preteen children. And you should be hesitant to place children in such a situation.
- The interaction and interrelationship between the child and the child’s parents, siblings, and significant others, like grandparents, extended family, neighborhood friends, school, church, teachers, counselors, and health care professionals. Courts are reluctant to split siblings or to move children away from their extended family and community ties.
- The child’s adjustment to home, school, and community.
- The mental and physical health of all individuals involved, including the child, parents, stepparents, and significant others. Both parents place their physical and mental health at issue in a custody battle.
- Evidence of a pattern of domestic or family violence by either parent. The importance of this factor should not be overlooked or underestimated.
- Evidence that the child has been cared for by a de facto custodian, such as when the child has been raised primarily by a grandparent or other extended family member.
The Court has the power to award sole custody, joint legal custody, or split custody of a child to either or both parents.
Sole Custody, Sole Physical Custody, and Joint Custody
Sole custody occurs where one parent has sole physical custody of the child subject to the other parent’s reasonable visitation or parenting time under the Indiana Parenting Time Guidelines.
Joint legal custody is the power to share in the authority and responsibility for the major decisions concerning the child’s upbringing, including the child’s education, health care and religious training. Courts have been reluctant to extend the authority beyond these three specific areas.
In making a joint legal custody determination, the Courts utilize the above factor, but also consider whether the parents have agreed to joint legal custody, the proximity and plan of the parents, and whether the parents get along well enough to communicate and cooperate in making major decisions.
Joint legal custody does not require equal physical time with the child. In most cases one parent has primary physical custody, like in the sole custody situation, and the other parent has visitation or parenting time with the child pursuant to the Indiana Parenting Time Guidelines.
Although not a legal term, split custody is the term usually used to describe a joint legal custody situation where the parents share equal physical custody or time with the child. It may be one week with the mother and the next with the father, or five days with the mother and then five days with the father.
The Court retains jurisdiction to modify its custody order whenever there is a substantial change in one or more of these factors and modification is in the best interest of the child.
The amount of visitation or parenting time to which the noncustodial parent is entitled and the amount of child support due to the custodial parent are the subject of other blog posts. However, you can read the Indiana Parenting Time Guidelines at www.in.gov/judiciary/rules/parenting/ and you can calculate child support at www.in.gov/judiciary/2625.htm.
How We Help Clients With Their Custody Objectives
At HAGGERTY & HAGGERTY, we take the time to listen and understand your family needs and your desires. We help you effectively tell your story to the Court by developing facts that support the factors the Court must consider in deciding your case. Often this includes a custody evaluation through the courts or privately. We will assist with such a referral. We are experienced and effective negotiators that can often achieve a favorable resolution by agreement outside of court, thus reducing the costs and time of litigation and eliminating the risk and uncertainty of a trial.
Please call us for a free initial telephone conference with an experienced partner or schedule an appointment for an extended paid office consultation to discuss how we can help you and your family through this difficult and stressful time.
And please do not forget to take care of yourself. Advise your doctor and religious advisor of your situation and stress so you can remain healthy and strong for your children.
It is my hope that this information has been of assistance to you and that we will hear from you soon.