Custody: How Does a Court Decide

In Indiana, when parents are in a custody dispute, the Court has to make a decision that will impact their children and each of the parents’ relationship with their children.  Specifically, the Court will issue an order that will cover the custody of the children.  That order will include a ruling as it relates to legal custody and physical custody.

When the Court talks about legal custody, the Court is talking about decision making on behalf of the children, specifically with regards to decisions relating to the children’s health, education, and religion. The Court has the authority to grant one parent sole legal custody or to give both parents joint legal custody.  For the Court to award joint legal custody, the Court must find that it would be in the best interests of the children.

Furthermore, it is not required that the parties agree to have joint legal custody for the Court to award it.  The Court is required to consider several factors in determining whether joint legal custody is appropriate and in the children’s best interests, including:

  1. The fitness and suitability of each parent.
  2. Whether the parents are willing and able to communicate and cooperate in advancing the children’s welfare.
  3. The wishes of the children, with more consideration to a child who is at least 14 years old.
  4. Whether the children have established a close and beneficial relationship with both parents.
  5. Whether the parents live close to one another and plan to continue to do so.
  6. The physical and emotional environment of the home of the parents.

Physical custody, on the other hand, deals with where the children spend a majority of their overnights.  As with legal custody, the Court is able to award one parent primary physical custody or grant both parents joint physical custody.  Granting both parents joint physical custody would result in the parents having the children an equal number of overnights, while if one parent is granted primary physical custody, that parent would have the children more overnights than the other parent would.

In both custody determinations, the Court is required to issue its custody order in accordance with the best interests of the children.  There is no presumption favoring either parent.  The Court considers all relevant factors, which include but are not limited to:

  1. The age and sex of the children.
  2. The wishes of the parents.
  3. The wishes of the children, with more consideration given to a child age 14 years or older.
  4. The interaction and interrelationship of the children with the parents, siblings, and any other person who may significantly affect the children’s best interests.
  5. The children’s adjustment to the home, school, and community.
  6. The mental and physical health of everyone involved.
  7. Evidence of a pattern of domestic or family violence by either parent.
  8. Evidence that the children were cared for by a de facto custodian.
  9. A designation of a power of attorney made by a parent or a de facto custodian.

Going through a custody matter can be complex and stressful.  Having an advocate in your corner to fight for your rights and to help advise you through the process helps.  If you have a custody case, give the family law attorneys at Banks & Brower, LLC a call at (317) 526-4630.  You can schedule a consultation to discuss how our attorneys can help you navigate your case.