A Primer on Indiana’s Custody Laws
Indiana custody laws are based on the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA. This act creates a legal jurisdiction so that courts within one state are granted authority over cases of custody involving children who go across state lines. The child must reside in Indiana or have resided in Indiana for at least six months prior to the filing of the custody order. If not, the courts in Indiana have no jurisdiction in the matter.
Indiana considers the best interests of the child when creating custody orders. The courts will look beyond just the parents. Other individuals, such as a stepparent or grandparent, are considered when an existing order is altered.
Child custody is different from guardianship. If a child is placed in guardianship, the Guardian has all of the rights that are associated with being a parent. Child custody is simply about the rights of the custodial and non-custodial parents . In a divorce, or after parents have lived together with children but have separated, they must decide on one of three types of legal custody:
Physical or legal custody can be joint custody, one parent can be awarded both physical and legal custody, or the court may award sole custody of the child to one parent.
Custody orders in Indiana do not contain ruling on where the child places residency during the school year. It is important to stipulate how long the child will reside with each parent. If one parent is awarded full-time residency, that parent will remain the residential custodian until one of three events occurs: Until that time, the Republicans and Democrats have separate responsibilities as to the care of the child. A non-custodial parent is also responsible for child support. This child support must be paid unless the order of custody is modified, the child turns 18, gets married or is emancipated.
How Custody Decisions Are Determined
In general, Indiana courts will generally award custody based upon the best interests of the child. Specifically, the statute provides that: It is the public policy of the state to assure that the child has frequent, meaningful, and continuing contact with both parents after the parents separate or divorce because it is in the best interest of the child and to encourage and maximize a minor child’s physical, emotional, and intellectual development. The statute also provides the following: In determining the custody of children, there is no presumption favoring either parent.
Factors Courts Consider: To determine what is in the best interests of the child, the court will consider the eleven factors stated in the statute. They include the following: … (6) The willingness and ability of each parent to encourage contact between the child and the other parent. (7) The geographic proximity of the parents (as the proximity affects the practical considerations of joining households on a temporary basis). (8) The preferences of the child, with the adjustment being related to the age and maturity of the child. (9) The mental and physical health of all parties. (10) Evidence of a pattern of domestic or family violence by one (1) (or both) of the parents. (11) Any other factors that the court considers relevant. Keep in mind, there are many unlisted factors a court will consider as relevant. A judge will make their decision on what is in the best interests of the child based on a review of the evidence presented as well as their opinion of the child’s best interests based on their experience and common sense. In Indiana, there is a rebuttable presumption that joint physical and legal custody is in the best interests of the child. Therefore, a judge will not grant sole custody to one parent unless they determine that joint legal and physical custody would pose a significant risk of harm to the child.
Sole vs Joint Custody: What Parents Need to Know
In Indiana, the terms for custodial rights are either joint custody or sole custody. While equitably sharing custody means all parties are treating one another with respect and prioritizing their children, the law sets out criteria for what it considers appropriate, and this is where conflicts can often arise. Knowing your rights and protections under the law is important.
Shared or joint custody refers to situations where two parents both have a say in what is best for their child. This is also known as legal custody or decision-making authority. If you and your child’s other parent can agree on matters of concern, you will probably be granted joint legal custody. If the decision is left up to the judge because there is significant disagreement, then the judge will make the decision and award legal custody accordingly. For example, if the judge believes medical or mental health care your child is receiving is unhealthy, they can award legal custody to the other parent.
Physical custody, meaning factors such as where your child goes to school, whether they attend religious services, whether they participate in extracurricular activities, etc., can be awarded separately from legal custody. For example, the court could grant both parents shared legal custody but award sole physical custody to one party. Alternatively, it could award one parent shared legal custody but grant both parties shared physical custody. In Indiana, the presumption is that awarding parents shared legal custody equally, as well as physical custody evenly, is in the best interest of the child. Decisions regarding custody are complex and should be guided by an experienced family law attorney.
Amending a Custody Agreement in Indiana
When it is in the best interest of the child to modify the custody order, the Indiana Trial Rules define a process to allow the other parent to request a change in the current order. There are a few limited instances where the other side can "object" to the current Order. For all those other times, a modification action must be filed.
First, it is important to understand that if you have signed an Agreed Decree at the time of your divorce, that Agreed Decree might include some provisions that prevent you from even filing a motion to modify the decree without cause (essentially, you can’t just change your mind later). But in most cases, either spouse may file a motion to modify the decree if it is in the best interest of the child.
In order to modify the custody Award, there must be a "substantial or continuing change in the residence of the child." The change of residence must occur under some type of circumstance that would justify a change in the award. For example, if the Court made the Award based on the fact that you were living and working in Indiana, but then you moved to another state for a new job. Or, if the other side failed to exercise their visitation for more than six months, a modification of a custody award could be appropriate.
When looking at the Mooney v.. Mooney case, you will note the Court noted that the main consideration during a modification of a custody award is that it must be in the best interests of the child. The burden of proof is on the party seeking to move to demonstrate why changing the order would be in the child’s best interest.
The Scope of the Guardian ad Litem
In many custody cases, the court will appoint someone called a Guardian ad Litem or GAL. This is a person who is appointed by the court to represent the best interests of the child. This most usually occurs in high conflict custody cases where it is in the best interest of the child for a third party to get involved to keep the focus on the child and not the conflict between the parents. "The Guardian ad Litem shall be presumed to be an expert in domestic relations matters and shall have the duty to represent the best interests of the child." Indiana Code 31-9-2-43. A Guardian ad Litem is not an advocate for a particular position – for example to be in favor of mom or dad’s request, but rather they investigate the case to gather factual information that will allow them to provide a recommendation for what is in the best interest of the child. They also work with the family and counsel them on how best to cooperate while going through a divorce or a custody dispute. Your attorney will prepare you for appointments with the Guardian ad Litem. Not many people have ever met with a GAL and they can be intimidating. Even if you never go to court or have a trial, the GAL makes recommendations to the court. That may be recommendations on parenting time , health insurance, child support, and more. The GAL goes into court ahead of the hearing and represents your child. In assessing the best interests of the child, the GAL considers the INDIANA CODE, the child’s age, medical condition, history of present and past duties, the parents capacities to properly provide nutritious meals along with proper clothing, and in general provide for a stable environment for the child. This is not the full list. The GAL ultimately has broad authority to conduct a thorough investigation to make their recommendation. They will reach out to Whomever they believe may be an appropriate source of information to gather information. The court may reject the recommendations; however, the GAL should not improperly bias the court with their recommendation based on one-sided statement taken out of context and by not conducting a thorough investigation to including sufficient information to present to the court. While the court appoints the GAL to speak for the child, the GAL’s recommendations are just that, their recommendation. Regardless, "The Guardian ad Litem is a representative of the court and shall not be considered an agent of any party". In other words, the GAL is not your attorney. They are not there to argue your position.
Enforcing Your Custody Order
If a parent refuses to abide by a court-approved legal custody order, a violation has occurred. The laws behind legal custody violations in Indiana are as follows:
- A parent first must attempt to resolve the issue of denied visitation or parenting time with the other parent.
- If an agreement cannot be made between parents, the violation should be addressed with the court who awarded the legal custody order.
- A formal motion will need to be filed with the court in order to enforce the custody or parenting time order. Parents may be asked to attend a hearing regarding the enforcement motion and possible sanctions against the denying parent.
Not only does the denying parent face legal civil penalties for not following a custody order, but it may also be hard for that parent to obtain his/her own legal custody order in the future. Courts may be less willing to agree with a parent who has not followed previous court orders. There are a variety of circumstances where punishment may be warranted depending on the violation. If it is determined that the parent’s actions were without justification, sanctions could lead to (but are not limited to) the following:
Any parent that violates custody or parenting time orders in Indiana, faces the potential of losing their custody rights completely. On the contrary, if you are the parent that was denied your legal rights to visitation or parenting time, it is important to understand the legal steps you can take to have your parenting time resumed.
The Role of a Family Lawyer in a Custody Case
Working with a Family Law Attorney to Navigate Custody Cases
Custody cases can be complicated, especially when they involve issues such as relocation or parental rights after the death of the custodial parent. The legal system is intentional about determining custody, so to do the right thing for your child, you need an experienced family law attorney .
When the case involves parenting time, a good lawyer will be able to help you negotiate with the other parent or with the Indiana Department of Child Services if that agency becomes involved. In most cases, you and your lawyer will come up with a plan and present it to the judge for approval. But if negotiations fail, you need your attorney prepared to advocate in court to secure a fair result for you and your children.