The best interests of the child is the standard by which any order of child custody is determined. The standard is based on a list of eight factors:
- The wishes of the parents
- Age and sex of the child
- The wishes of the child
- Interaction and relationship of the child with parents and/or siblings
- The child's adjustment to their home, school, or community
- The mental and physical health of all parties
- Patterns of domestic or family violence
- Care by a de facto custodian
A de facto custodian is a person who has been the primary caregiver for and financial supporter of a child who has resided with that person for at least 6 months if the child is less than 3 years old or at least one year if the child is older than 3 years old. The court will require the de facto custodian to be a part of the custody proceedings and may award legal custody to the de facto custodian if it is in the best interests of the child. If the child has been cared for by a de facto custodian, in addition to the best interests of the child standard, the court will also look at additional factors including:
- The wishes of the de facto custodian
- The extent of care, nurture and support of the de facto custodian
- The parent's intent in placing the child with the de facto custodian
- The circumstances under which the child was allowed to remain with the de facto custodian to allow a parent to seek employment, work or attend school
Types of Custody
The court may award custody or the parties may agree to any custody arrangement that fits their family. The parties are in the best position to know what will and will not work in their family dynamic. Parties who are not living together may be awarded joint legal and physical custody or any other variation of custody.
By definition, legal custody is the decision making control over a child. The legal custodian(s) have control in decisions of healthcare, religion, and education. The parties can agree to any other type of decision making control. Some examples of other types of decision making control in the child's life include the participation in extracurricular activities, dating age, summer camps, age for getting a job, or methods of discipline for the child.
Physical custody is simply where the child lives or spends his or her time. The child may have a primary physical custodian, which is just where the child lives most of the time.
Physical custody may be shared between parents who do not live together through parenting time. Indiana has created minimum parenting time guidelines, but they are only a starting point. Once again, the parties may agree to whatever parenting time schedules work best for them and their children.
In awarding joint custody, the court will review several factors including the fitness of both parents, the agreement of the parents, the parents' ability to communicate and cooperate with one another, the child's preference if he or she is over 14 years old, the geographical proximity of the parents' homes and the level of involvement of each parent. The court may also review outside sources of information through a custody evaluation performed on the parties involved.
Custody Evaluations may be requested by parent or child custodian or the court may order an investigation to report on custodial arrangements for the child. The evaluation can be done by a court social service agency, staff of juvenile court, local probation department, county office of family and children, private agency, guardian ad litem or court appointed special advocate (CASA). The evaluator may consult any person with information about the child and the possible custodial arrangements. The evaluator may obtain information from medical, psychiatric, or other experts without obtaining the consent of parent or child's custodian, but may require consent of child if the child is of sufficient age. The evaluation may be received in evidence and may not be objected to on the grounds of hearsay. Custody evaluations can range in price and may be very expensive.
Custody Following Determination of Paternity
The biological mother will have sole legal custody of the child unless court order provides otherwise due to the involuntary commitment of child, a pending guardianship or protective proceeding, the child is considered a child in need of services (CHINS), the child is delinquent, or the parent is serving a criminal sentence or has committed an offense against the family. The best interests of child standard will be followed and the court will also consider the care and involvement of a de facto custodian.
Removal of Child and Intent to Move
A custodial parent may not relocate with the child without complying iwth Indiana's relocation statute. The parent must file Notice of Relocation with the court that issued the custody order and notify the non-custodial parent of their intentions, which provides the non-custodial parent a specified time to object to the relocation. If the parties cannot agree to a change in parenting time or custody, either party may request a hearing for the court to determine whether to modify custody, parenting time or child support. The court will review a number of factors, including whether the move is in the child's best interests as well as the distance involved in the proposed relocation and the hardship and expense of the non-custodial parent to exercise his or her parenting time rights.
Neither party to a custody order may apply for a passport for a child, unless notice has been filed with the clerk of the court that issued the custody order and to the non-custodial parent not less than 10 days before the application is filed, unless the parties have agreed jointly in writing to waive this requirement.
Uniform Child Custody Jurisdiction Act
The child's home state has jurisdiction to determine all matters relating to custody of the child. Indiana has adopted the Uniform Child Custody Jurisdiction Act to determine the requirements for jurisdiction of child custody matters. The act provides requirements for notice to all parties, does not allow simultaneous proceedings in different states regarding the same matters, allows the court to determine inconvenient forums for child custody issues and allows for the recognition of out of state custody decrees. Indiana will recognize and enforce an initial or modification of a custody decree of another state with jurisdiction under provisions that are substantially similar to those rules that have been adopted in Indiana.
Modification of Custody
The court may modify custody, but the best interest of child is the main concern. The party requesting modification must show that there has been a substantial change in circumstances. Any modifications must be filed in the county that issued the original order. Some counties may require any modifications to be mediated first. A court in Indiana will not modify an out of state custody decree unless the state that rendered the decree does not now have jurisdiction or has declined to assume jurisdiction to modify and Indiana now has jurisdiction in the matter.
Parenting Time for Non-Custodial Parents
Noncustodial parents are entitled to reasonable parenting time unless the court finds after a hearing that it might endanger the child's physical health or significantly impair the child's emotional development
Grandparents may seek visitation if the child's parent is deceased, the marriage of child's parents has been dissolved in Indiana or the child was born out of wedlock, but paternity has been established. If the parents' marriage has been dissolved outside of Indiana, grandparents may only seek visitation if the custody decree does not bind the grandparents and an Indiana court would have jurisdiction to grant visitation rights to the grandparent in a modification decree. Grandparents may also seek visitation if a child has been adopted by a stepparent or a biological relative. In determining grandparent visitation, the court will review the best interests of the child, and whether the child previously had meaningful contact with the grandparent(s).