For Hoosiers involved in paternity, divorce litigation, or who will be filing and litigating such a case, likely through counsel, it is important to understand Indiana’s custody and visitation laws. The place to start is understanding there at two (2) type of custody. The first is physical custody. This relates to where the child(ren) will sleep and night—which parent has the care, custody and control of the children. The other parent, in the absence of joint physical custody, will get less days per year with the child(ren). The other type of custody is legal custody. This refers to who makes the decisions for the child(ren) about healthcare, religion and education. It has no connection with which parent has physical custody of the children, which again, refers to the care, custody and control of the child.1 This blog focuses on physical custody arrangements that can be obtained under Indiana law.
While many litigants believe equal physical custody is the law, it is not. In Indiana, the law presumes one parent will be awarded physical custody and the other Indiana Parenting Time Guideline (“IPTGs”) time. Generally, under the IPTGs, the non-custodial parent’s time is every other weekend, one night a week, half of the summer, and alternating holidays.2 The term “visitation” is not a current term that is equated with the non-custodial parent’s time with his or her time with the children. It used to be. However, it was thought this term, namely “visitation”, did not reflect the depth of the bond between the non-custodial parent and child(ren) or amount of time the non-custodial parent should have with the child (significant time in the average case). Now the term “visitation” is only found in Indiana family law when it relates to grandparent visitation, which is to be only occasional and infrequent.
So, if you want joint or shared physical custody, you need a skilled legal advocate to represent you to develop the evidence to present in court on why joint or 50/50 physical custody in is the children’s best interests. This will make or break your case. Just a few of the factors that may be presented to the court to make your case for joint custody are as follows: close distance between the parents’ respective homes, the homes are in the same school system, and the children are connected to both neighborhoods. With this, a skilled advocate for you should put into the evidence how this will work, such as addressing all transportation issues between homes, school, activities and how this will work with an order of joint physical custody. If no workable plan is presented to the Court, it is unlikely the Court will order joint physical custody.
Presupposing you can present evidence that joint physical custody is in the children’s best interests and the court should not follow the presumption that sole physical custody is in the children’s best interests as it is the present law in Indiana, you must present that the rotation of the children between homes is in their best interests. The parties may find week-on, week-off works best or a rotation of days works better, such as 3-2-2-3 or 5-2-2-5 rotation. What rotation is in the children’s best interests and why it will work is another part of obtaining joint physical custody. If you can establish this in the evidence, the court may well decide that joint physical custody is in the children’s best interests. The court has the discretion to deviate from the presumption of sole legal custody in one parent and IPTG time to the other if it is in the children’s best interests.
While joint or 50/50 joint custody is not the law in Indiana, a skilled family law attorney can assist you through the litigation and make your best case for joint physical custody. Again, while this is not the law, there is a strong trend toward joint physical custody. Work with your counsel to make your case! This blog was written by attorneys at Ciyou & Dixon, P.C. who handle domestic cases of all types across Indiana. This blog is not intended as specific legal advice or a solicitation for services. It is an advertisement.
- Under the statutes and caselaw on legal custody, joint custody is generally the presumption if the parents can work together to make decisions for the children on issues relating to education, religion, and health care. Where the parents make this a “battle ground” and cannot communicate to agree upon legal custody decisions, the court typically does not award joint legal custody because it is not in the Children’s best interests. In these cases, one parent will have sole legal custody. In certain cases, if the evidence supports it, the court may divvy up legal custody. In this circumstance, one parent may have sole medical and educational legal custody while the other has sole religious legal custody. Legal custody is important to most parents. To obtain the legal custody position you desire, you need skilled domestic counsel to develop the evidence. As with physical custody, you have to show to the court it is in the children’s best interests for an award of joint legal custody.
- The IPTGs are different for a child three (3) years of age or younger.