Indiana Child Custody Questions

Indiana child custody attorneys provide answers to frequently asked questions with regards to Indiana child custody laws.

Who will get custody of our child?

In Indiana, who receives custody of the children is based on the best interests of the child. What is in the best interests of the child is determined by the court based on an analysis of a series of factors set forth by statute.

What is joint custody? What is sole custody?

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

Physical custody refers to where the child(ren) are physically located. Parents can share physical custody, which means the children spend equal time with each parent. Or one parent can have primary physical custody, with the other parent having “parenting time” or visitation.

Legal custody refers to how to deal with major decisions that arise in a child’s life. Parents can share joint legal custody or one party can have sole legal custody.

If both parents share custody does anyone pay child support?

Whether a party pays child support will be based on the result of a formula created by the state that considers each party’s gross weekly income, the cost of the child’s daycare, if necessary, and who pays for it, health care costs, and the amount of parenting time the non-custodial parent exercises.

If both parents share custody and their incomes are sufficiently similar, they may be able to avoid a separate child support obligation. Alternatively, the parties can agree to forego a child support order and instead provide for the expenses associated with the child’s care whilst exercising their own parenting time.

Can a parent refuse to allow visitation if child support is not paid?

No, parenting time may not be refused based solely on the failure to pay child support. However, if an obligor fails to pay child support the spouse may file a contempt of court action in the original court where the divorce and child support orders were issued. In some instances the court can provide jail time for the nonpayment of child support.

When can my child decide which parent to live with?

Until your child reaches the age of 18, the court will make a determination as to custody. However, at age 14, consideration is given to the child’s wishes by the court when making this determination.

Do grandparents have custody and visitation rights?

In Indiana, grandparents may pursue visitation with their grandchildren through the court. Whether a grandparent is given visitation rights is based on the best interests of the child.

A grandparent may do so if the child’s mother or father is deceased, if the child’s parents were divorced in Indiana, or if the child was born out of wedlock. A grandparent’s visitation rights survive the adoption of a child by a stepparent or by the child’s grandparent, sibling, aunt, uncle, niece, or nephew.

What is a parenting plan, and do I need one?

A parenting plan refers to the parenting time or visitation that divorcing or divorced parents have with their children. If the parties are agreeable, it is highly encouraged they come up with a parenting plan that suits their schedules and allows their children to foster a healthy relationship with both parents.

If this is not an option, the court will make a determination regarding custody and parenting time as a part of the final Decree of Dissolution governing the time of each party.

If my separation agreement includes custody/support can it be included in the divorce decree?

If the court approves the content of the custody and support portion of the agreement, it can be included in the Divorce Decree. Since the best interests of the child must always be determined by the court, this portion of the agreement will not be included automatically.

What can I expect from temporary orders?

Divorcing couples often tackle custody and visitation issues as soon as they separate. Courts generally honor both long-term and short-term custody arrangements agreed to by parents. When parties can’t agree, a temporary order governing the provisional period may be issued by the court.

This order may be determined by a preliminary hearing during which evidence regarding custody and parenting time is presented. After the hearing, the court issues an order deciding custody that will be in effect until the court enters its final divorce decree.

When will child custody be decided?

Temporary custody may be decided as soon as separation is effected. Permanent custody arrangements will be included in the court’s final Decree of Dissolution.

When can I modify custody?

Once the issues of custody and visitation have been resolved by agreement or the court, specific procedures must be followed to change the arrangement.

In order to support a request for a change to a custody or visitation arrangement, the parent seeking the modification must show a substantial change in circumstances. Courts will almost always consider a request for modification if there is a showing that the child is endangered by the current custody arrangement.

If a custody modification is contested, then the parent seeking the change should be prepared for what will likely be a contentious hearing.

What if we cannot agree on a custody arrangement?

If the parties cannot agree to a custody arrangement, the court will determine what arrangement is in the best interests of the child and include the plan in the final Decree of Dissolution.

What is an ex parte order?

An ex parte order is an order requested by a party and issued by a court without notice to the other party.

How is custody decided?

Custody is determined by the court’s determination of what is in the best interests of the child. What is in the best interests of the child is determined by the outcome of the court’s analysis of a series of factors set forth by statute, including the wishes of the parents, the interaction and interrelationship of the child with the child’s parents, siblings, etc., the child’s adjustment to the child’s home, school, and community, and the mental and physical health of all parties.

How can I increase my chances at getting a larger custody agreement?

You should consider your involvement in your child’s life and work to actively maintain and develop this relationship. Spend as much time with your child as possible so your role in their life is clearly visible to the court.

What is visitation?

Visitation or parenting time is the actual time divorcing parents spend with their child.

Can a judge order supervised visitation or no visitation?

A judge may order supervised visitation if some risk to the child exists if unsupervised visitation is granted. Similarly, if the court determines it is not in the best interests of the child for a parent to exercise parenting time, the court may order no visitation.

Do courts favor the mother over the father?

In Indiana, there is no presumption favoring either party just by virtue of their gender. The court’s duty is to consider the best interests of the child in making a custody determination.

What should I know before a custody trial?

You should know the court will be making inquiries into your role in your child’s life, your health and stability, and your contribution to your child’s upbringing.

If custody is contested, be prepared for what is considered the most contentious issue in family law. You must be able to prove to the court that your child is better off with you. Thus, you should bear this in mind at all times.

Can I collect my own evidence to use if my custody case goes to court?

If there is custody litigation, gather photographs of you and your children, buy and read books about parenting and children, attend seminars and keep the literature provided to you. These activities will help strengthen your relationship with your children and serve as useful tools during your custody litigation.

Do I need to use a Guardian ad Litem/Custody Evaluator?

In some cases a Guardian ad Litem is recommended in order to help the court learn more information about each parent and their relationship with the child. Often the court or your attorney may recommend or require the appointment of a custody evaluator or Guardian ad Litem in order to assist in the determination of custody in your case.

Will my child need to appear in court?

Depending on the age of your child, the court will likely try to determine a custody arrangement without requiring your child’s appearance in court.

If your child is a bit older and his/her wishes may be considered by the court (i.e. at least 14 years old), your child’s appearance in court may be necessary.

What is the Parental Kidnapping Prevention Act?

The PKPA allows any state to honor and enforce a custody order issued by another state’s court in order to prevent parental kidnapping. The PKPA prohibits a second state from exercising jurisdiction when another court is already exercising jurisdiction in a child custody matter. This prevents a parent from seeking the intervention of a new court into a custody matter that has already been determined by a court in the child’s home state.

What if my wife tries to move the kids out state?

Indiana law requires that individuals subject to a parenting time or visitation order must file and serve upon the other party a notice of intent to relocate whenever he/she relocates his/her residence. There is no distance restriction for this requirement.

The notice of relocation must be filed and served upon the opposing party no less than ninety (90) days before the parent intends to relocate, and the notice must contain the information pertinent to the new location.

The non-relocating party may then file a motion with the court objecting to the relocation of the child. If such an objection is filed with the court, the relocation is contested and must be scheduled for hearing.

Can a parent change the child’s last name without the other parent’s permission?

No. A parent may not change a minor child’s last name without the other parent’s permission unless their right to consent has been removed by law. In the absence of these circumstances, the parent wishing to change the child’s name must petition the court and obtain consent from the other parent.

If I have custody, will I receive child support?

If these factors produce a child support obligation for the non-custodial parent, you will receive child support.