A Close Look at How Custody Works in Indiana

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Posted in On June 30, 2015

Indianapolis Divorce Attorney Blog: What Does Custody Mean in Indiana?

Whether faced with a divorce or a paternity action, there are many parents who are unsure as to exactly what requesting custody of their children means in Indiana.  To begin, Indiana law separates child custody into 2 categories: 1) legal custody and 2) physical custody.  When a court determines how custody is going to be awarded in a specific case, the court always uses the ‘best interest of the child’ standard; however, the factors a court uses to determine what is in the children’s best interest with regard to legal custody and physical custody do vary under Indiana law.
What is Legal Custody?
Legal custody determines which parent or parents can make the major life decisions for the children.  The main 3 major life decisions for a child are those with regard to educational decisions, medical decisions, and religious decisions.  There are only 2 possible outcomes for a legal custody award, joint or sole legal custody.  In order to get joint legal custody, there is no requirement in Indiana that there must also be an equal division of physical custody of the child.  The Indiana Code outlines the following factors that a court is to consider when making a legal custody determination:
I.C. 31-17-2-15: Joint legal custody; matters considered in making award

In determining whether an award of joint legal custody under section 13 of this chapter would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall also consider:
(1) the fitness and suitability of each of the persons awarded joint custody;
(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
(3) 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;
(4) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.
There is no default legal custody award outlined in Indiana law; however, more often than not, if the court is faced with having to make a legal custody determination, joint legal custody will be awarded unless one party or the other shows that they are absolutely unable to communicate with each other or agree on anything with regard to the children.  The court generally understands that most parents going through litigation have some difficulties communicating with each other or else they wouldn’t be going through a divorce or paternity action in the first place.  As such, even with some evidence of communication difficulties presented to the court, a court may well likely award joint legal custody because it typically believes it is in the children’s best interest for the parents to work on and improve co-parenting with one another.  Thus, the communications between parties justifying a sole legal custody award typically are those that are continuously hostile, unproductive, and/or when one or both parents aren’t even willing to communicate with the other by any means.
 What is Physical Custody?
Physical custody in Indiana is mostly a description of the parenting time rights that both parents have with the children.  During some child custody cases, many parents use the term ‘sole physical custody’; however, this term is generally a misnomer because very rarely does a parent receive no parenting time with the children.  Even if a parent were to be awarded only a couple hours of supervised parenting time, the other parent wouldn’t be considered to have ‘sole physical custody’ of the children.  Instead the term ‘primary physical custody’ is more commonly used when it comes to physical custody of the children.  Primary physical custody simple means that a parent has parenting time with the children more than 50% of the time.  Unlike legal custody where there are only 2 possible outcomes, sole or joint legal, physical custody is more of a sliding spectrum from no parenting time up to an equal division of parenting time.
Again, a court uses the ‘best interest of the child’ standard for a physical custody determination.  The factors a court considers, however, are different than for legal custody:
I.C. 31-17-2-8: Custody order

Sec. 8. The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) 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.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s best interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.
The court is free to consider any other factors a parent may feel is relevant for a custody determination in addition to the ones listed above.  As such, a physical custody award is very fact specific and can greatly vary from one case to another.  Joint physical custody is far less common than joint legal custody as, in many cases, there is one parent who historically was the primary caregiver for the children.  The primary caregiver is typically the parent who did the majority of the caretaking responsibilities for the children, including bathing them, helping with their hygienic routines, providing them with meals, taking them to their physicians and other appointments, helping them with their homework, providing consistent discipline, doing clothing or grocery shopping for them, and putting them to bed.  Generally speaking, the more closely these responsibilities were equally shared by the parents, the more likely it will be that the physical custody award will be closer to a 50/50 share.  However, again, there are endless factors that can be considered.  A court also puts a lot of weight on the relationships that each parent shared with the children.  Other various factors can have a large impact on a physical custody award as well, such as distance between the parents’ residences and even each parent’s respective work schedules.
As custody determinations are very fact specific, it is important that you obtain a local attorney to help you with your case.  If you are thinking about a divorce, child custody, or support case, the attorneys at Banks & Brower, LLC can help you.  Give us a call at (317) 870-0019, or email us at info@banksbrower.com.  We are available to take your call 24/7/365.