One rather complex issue is what evidence a parent has to put on at trial to receive more parenting time. Is this burden different from a physical custody modification since the net result can be deemed a change in how much time a child spends with the non-custodial parent, including more overnights, up to equal time?
As advocates with a focus on education, Dixon & Moseley, P.C. attorneys routinely go over these subtle distinctions with clients. We hope this blog post elucidates your view on these slight-to-major differences. Perhaps you cannot meet the burden to obtain a custody modification, but the evidence will support a parenting time increase (or decrease).
Unlike physical custody modification, the burden of proof to modify parenting time is lower. Specifically, parenting time may be modified “whenever modification is in the best interests of the child.”1 On the other hand, physical custody may be modified only upon showing of a substantial change in circumstances with the factors the court may consider, plus it is in the children’s best interests.2
In cases where the parenting time is increased to 50 percent of all parenting time, however, the Indiana Court of Appeals has held this to constitute a de facto physical custody modification.3 Nevertheless, a trial court’s decision to modify parenting time such that it creates joint physical custody may be affirmed. The legal basis the Court of Appeals may utilize is if the mother or father establishes in the evidence a substantial change in circumstances, and that this arrangement is in the child’s best interests.
Where a case may support either an increase in parenting time or a modification of sole physical custody to effectively joint physical custody, the non-custodial parent should take care to put on evidence to meet the higher burden of proof consistent with his or her objectives. Nevertheless, these cases, one parent will still be designated the custodial parent for child support purposes and the benefit of the controlled expenses.
Specifically, when parents equally share in the parenting, certain variables–controlled expenses–are duplicated under the child support guidelines. Thus, one parent will still need to remain designated as the custodial parent. This is the parent who will pay expenses that are not duplicated or transferred in a joint custody situation with this designation.
Controlled expenses are items like clothing, education, school books and supplies, and ordinary uninsured health care and personal care.
Thus, an increase in parenting time, to the extent it reaches 50 percent of all available parenting time, is a de facto custody modification to joint physical custody. The parent must demonstrate a substantial change in circumstances to prevail. And careful consideration must be given to who should receive the controlled expense benefit encompassed in the Guidelines.
At Dixon & Moseley, P.C., we hope this blog post helps inform your understanding of the different burdens of proof between an increase (or decrease) in parenting time and custody modification. If you do, you are now a more informed member of society and litigant. This will help you help your attorney to maximize reaching your legal objectives. This blog post was written by attorney Bryan L. Ciyou, Dixon & Moseley, P.C., whose advocates practice throughout the State of Indiana.
