Indiana Child Custody Laws

Your children have a voice. You do too. Custody decisions are not “automatic” or one-­sided. The law exists to protect everybody’s interests.

Of all the challenges that exist in family law, child custody is without doubt the most emotionally fraught. Parents are always first and foremost parents whatever else happens. Their desire for custody of their children may be reconciled amicably, or, it may require more time and energy to reach the best resolution for everyone involved.

At Roman­-Lagunas & Wheeler, we offer you a combination of sensitivity, common sense and deep expertise to support you at such a demanding time. We begin by building a detailed understanding of your unique family circumstances. Then, we apply our experiences and knowledge to build your confidences and assert your legitimate interests. In order for you to regain control, you need to understand the process. Let’s start with how this law works.

Indiana child custody laws are split into two key areas: Legal Custody and Physical Custody. What are the differences? Legal Custody deals with parents making decisions for their children and their children’s upbringing. The three major areas of concern are education, religion and medical treatment. Physical Custody is where the child lives.

Guardianships In Indiana

When a child’s parents are unable to take care of their child, or children, a third­-party may step in and ask for guardianship. Third parties typically include the grandparents, aunts, uncles and other family members, but, you should know that the guardian does not have to be related to the child. Indiana law prefers that a child live with his or her parents over a grandparent or other third-­party, but this can be rebutted by looking to the best interests of the child and the fitness of each parent.

The guardian will basically have all the authority a parent would have over the upbringing of the child. They will make all major decisions regarding the child’s education, medical treatment and religious upbringing. The parents may still be able to see their child, but only if the court finds that parenting time would benefit and not physically or emotionally endanger the child.

Guardianships are not “set in stone”; they can be modified or terminated. At any time during the guardianship, either parent can request the guardianship be terminated and that the child return to the parent’s care.

Determining Legal Custody

For many parents going through the divorce process, the single biggest fear is that they will “lose” their child in a heated custody battle. Replacing fear with a measure of confidence starts with a clear view of the law as it stands. So what is the law? When the court is faced with the decision to award sole legal custody to one parent (all decision­-making authority of a child’s upbringing), or joint legal custody to both parents, the process is not arbitrary and one parent is not bound to “win”. Many factors are taken into account, with an emphasis on the best interests of the child. Specifically, the following are considered:

    1. The fitness and suitability of each of the persons awarded joint custody;
    1. Whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
    1. 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;
    1. Whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
    1. Whether the persons awarded joint custody live in close proximity to each other and plan to continue to do so; and
    1. The nature of the physical and emotional environment in the home of each of the persons awarded joint custody. (I.C. 31­-17­-2-15)

Determining Physical Custody

Physical Custody focuses on where the child lives primarily and when the child will visit the other parent for Parenting Time (Visitation).  This is a major source of worry for many parents as they fear they will not have enough time with their child, or worse, that the other parent will “win” Physical Custody.  To ease your fears, we will explain in detail how the custody and parenting time laws operate in Indiana and how they will apply in your pursuit of being custodial parent.   So, how does the law work?

When the court is faced with the issues of Physical Custody and Parenting Time (Visitation), there is no presumption (no “automatic decision”) favoring either parent. All the relevant factors will be considered, including:

    • The age and sex of the child;
    • The wishes of the child’s parent or parents;
    • 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;
    • The interaction and interrelationship of the child with the child’s parent or parents, the child’s sibling(s), and any other person who may significantly affect the child’s best interests;
    • The child’s adjustment to the child’s home, school and community;
    • The mental and physical health of all individuals involved;
    • Evidence of a pattern of domestic or family violence by either parent; and
    • Evidence that the child has been cared for by a de facto custodian. (I.C. 31-­17­-2-­8).

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