Child Custody

Legal Custody Versus Physical Custody

There are two basic forms of custody in Indiana – legal custody and physical custody.

• Physical custody refers essentially to where the child(ren) is physically located. Parents can share joint physical custody, meaning that the children spend equal time with each parent. Or, one parent can have primary physical custody, with the other parent having “parenting time” (often referred to as visitation). Regardless of the physical custody arrangement, legal custody is a separate issue.
• Legal custody refers to how to deal with major decisions (i.e., religious upbringing) that arise in a child’s life. Parents can share joint legal custody or one party can have sole legal custody.

Custody And Parenting Time

An Indiana court will make decisions about custody and parenting time based on the child’s best interests. “Parenting time” is simply another term for “visitation” and refers to the actual physical parenting time plan that divorcing or divorced parents have with their children.​

In determining the best interests of children, courts may consider any number of factors, including but not limited to, the age and sex of the child; the wishes of the child’s parents; the wishes of the child, with consideration given to the child’s wishes if the child is at least 14 years of age; the interaction and interrelationship of the child with the child’s parents, siblings and any other person who significantly affects the child’s best interests; the child’s adjustment to the child’s home, school and community; the mental and physical health of all parties involved; evidence of a patterns of domestic or family violence by either parent; and evidence that the child has been cared for by a de facto custodian (someone other than the parents themselves).

Determining Custody

There are all kinds of options that you have before resorting to a “custody battle” to determine who should have custody of your children. Sometimes, counseling, either individual or family, can be helpful. Mediation is also a helpful tool in assisting families in finding unique solutions. The most important thing to remember is that if you can reach an agreement in any way, it is important to do so. Reaching an agreement will likely mean that you will have to make some compromises and your co-parent will have to do the same. The beauty of an agreement is that you are the one in control. When you ask the judge to determine the custody of your children, you lose all of the power. Someone who does not know you, your spouse or your children will be making a decision that will substantially impact all of your lives. Further, having a judge decide custody issues means that you will have to go into the courtroom and say negative things about your spouse and your spouse’s parenting, and your spouse will do the same thing to you.

Custody litigation may take a long time and can be rather expensive. Litigation can be emotionally taxing, not just for you and your spouse, but for your children as well. Regardless of the current situation, you have to co-parent with this person for the rest of your life – and so litigation has long-term ramifications. You will both be at your child’s wedding, the birth of your grandchildren, your grandchildren’s birthday parties, etc. What you say in court cannot be taken back. And what you hear in court, you may never be able to forget or forgive. Starting off this way makes future co-parenting very challenging. When you can avoid custody battles and resolve matters yourself, it is best to do so.​

Sometimes, though, it is just not possible to avoid seeking the court’s assistance in making a custody determination. If you find yourself in this situation, it is important that you put together your case such that you present the best possible case to the judge to convince him or her that it is in your child’s best interests for you to have primary physical custody. An experienced custody attorney will discuss all of this with you and will assist you in framing your case in the best, most concise way to convey to the judge your position on your child’s best interests.

Modifications Of Custody

Regardless of how custody is determined, custody orders are not irreversible. Indiana law provides for the modification of custody if the circumstances warrant a change, though the court must approve any petition for this updated agreement.

Indiana law states that a custody order may be changed if a modification is:

• In the best interests of the child
• There is a substantial change in circumstances approved by the court

Some of these circumstances may include a change in living situation, abusive behavior, relocation, a new job schedule and other factors.