Divorced or unmarried parents often find it challenging to decide custody and visitation matters. Although emotions run high, parents can make co-parenting less stressful by communicating and working together. Parents should discuss who will be responsible for the child’s daily routine, medical and educational needs, and how the child will spend time with each of them. If parents can’t agree, a judge will decide physical custody, legal custody, and parenting time.
What is Custody?
Legal custody refers to a parent’s right to make decisions relating to the child’s health, education, and general welfare. Common issues that arise with legal custody include the child’s education, major medical procedures, and religious upbringing. The court may order sole (one parent) or joint legal custody (both parents). If the court awards sole legal custody, the parent will have a right to make these choices on their own. If the court awards joint legal custody, both parents share decision-making authority. If parents can’t agree, the court will decide.
Physical custody generally refers to the parent’s time with the child, and includes where the child will live and which parent will be responsible for the child’s daily needs. Like legal custody, a court can award sole or joint physical custody. Courts often award joint physical custody to assure the child will have frequent and continuing contact with both parents, but it is important to understand that this doesn’t necessarily mean that the child will spend the same time with each parent. Sole physical custody means that the court recognizes one parent as the “custodial parent”, and the child will spend the greatest amount of time in that person’s home with visitation between the child and the other parent.
Will the Court Award Joint Legal Custody?
Joint legal custody means that both parents would be involved in making major decisions about the child, and, the court may award it if it's in the child’s best interest. If parents agree that joint custody is best, they must be able to show the court that they can work together to decide important issues about the child. If the parents can’t work together, joint legal custody is not beneficial to the child.
In addition to considering whether the parents can work together, Indiana courts will evaluate several factors when deciding about joint custody, including:
- each parent’s fitness
- if parents are willing and able to communicate and cooperate
- the child’s preference, if the child is at least 14 years old and mature enough to express an opinion
- whether the child has a close and beneficial relationship with both parents
- whether the parents live near each other and if they plan on continuing to do so, and
- the nature of the physical and emotional environment in the home of each parent.
What is Parenting Time?
If the court awards one parent sole physical custody, the next step is to determine a parenting time (visitation) schedule for the non-custodial parent and the child. The court will often encourage the parents to work together to draft a schedule that works best for everyone, especially the children.
A successful calendar will include a specific schedule for visitation—including holidays, school vacations, and birthdays. It should also contain information on pick-up and drop-off locations, who will be responsible for transporting the children during visitation, and who will pay for transportation costs. Parenting plans should also have a provision that allows each parent to have access to a child’s official records, including medical and educational information.
In some cases, overnight or unsupervised time with a parent may not in the child’s best interest. The court will not usually place any restrictions on parenting time unless it finds that a parent’s exercise of parenting time would endanger the child’s physical health or significantly impair the child’s emotional development. If a parent has a history of being absent, neglectful, or abusive, the court may require supervised visits, where the parent spends time with the child at a county or state facility with a professional supervisor in attendance. Visitation facilities may not be free, so the non-custodial parent will be responsible for any required payment.
How Does the Court Determine Custody?
First, courts prefer and encourage parents to work together to determine their ideal custody arrangements. Parents can use a neutral third-party—called a mediator—to help them reach an agreement on the best custody and visitation arrangement for their family.
If you can’t agree, a court will have to decide custody based on the best interests of the child. The court doesn’t favor either parent, so each will have an opportunity to show or tell the court why they believe they are the best custodian for the child. During a custody hearing, the court will consider:
- the age and sex of the child
- the parent’s wishes
- the child’s preference, if the child is at least 14
- the interaction and relationship with parents, siblings, and any other important people involved in the child’s life
- the child’s adjustment to their home, school, and community
- the parents’ and child’s mental and physical health
- any evidence of a pattern of domestic violence by either parent, and
- evidence that someone else has cared for the child—called a “de facto” custodian.
If the court determines, by strong evidence, that there has been someone else taking care of the child, a judge may award custody to the custodian. Before making a final decision, the court will need to evaluate additional factors regarding custody. The court must take into consideration:
- the de facto custodian’s wishes
- the extent to which the custodian has cared for, nurtured, and supported the child
- the child’s parents’ intent when they placed the child with the custodian, and
- the reasons why the parents placed the child with the custodian, including seeking work or attending school.
The judge will decide custody based on the evidence presented by each parent. Once the court creates a parenting plan, both parents must follow it precisely. If one parent wishes to change the agreement, they will need to ask the court for a hearing.
Modifying Custody and Visitation
As children grow and their needs change, parenting plans and custody arrangements may need to be reviewed and adjusted. Parents can agree to a new plan, or if they can’t agree, they can ask the court to modify the arrangement.
The court will consider modification if a parent can prove that there has been a substantial change of circumstances in the parents’ or child’s life since the last order. Some examples of significant changes may include a relocation by either parent, or unexpected medical or educational needs of the child.
If the parent proves there is a change in circumstances, the court will evaluate the best interest factors listed above to establish a new custody and parenting time order. Parents should remember that until the court issues a new order, the previous custody and visitation rules will remain in effect.
Custody and visitation battles are emotionally draining and complicated, so if you want to establish or modify custody or visitation, you should seek assistance from an experienced family law attorney.