While most people who intend to divorce or are divorcing in an Indiana trial court with children have a general sense that the court must determine custody, few have an adequate understanding of the components of child custody. There is physical custody and parenting time as well as legal custody. Physical and legal custody may be divided equally between the parties or awarded solely to one person. This blog generally defines these terms and answers the question: “Does one parent have to have primary custody?”
The place to start in answering this question is by differentiating the various types of custody. First, there is physical custody. Physical custody is where a child will sleep at night. The presumption under Indiana law is that one parent has sole physical custody and the other parent gets Indiana Parenting Timeline Time. For children over the age of three (and where distance is not a factor), parenting time is one night a week, every other weekend, half the summer break, and alternating holidays. However, one parent does not have to have primary custody. A judge can order what every physical custody arrangement is in the children’s best interests. This can include joint physical custody where the parents share equal parenting time, which is week-on-week-off or a rotation of days, such as 5-2-2-5. To rebut this presumption of primary physical custody in one parent and more parenting time and attain more days than the Indiana Parenting Time Guidelines recommend or joint physical custody, this takes careful development of the evidence with your attorney. You must provide the court with evidence of why your requested physical custody arrangement is in the children’s best interests. So, one parent does not have to have primary physical custody, although that is the presumption in the law. The trend is more toward shared physical custody. If this is what you seek, work with your attorney to develop the evidence of why shared physical custody is in the children’s best interests.1
The second component to custody is legal custody. Legal custody covers which parent makes the religious, medical, and educational choices for the children. It is relatively common for both parents to agree on these issues and joint legal custody is commonly found by Indiana trial courts to be in the children’s best interests. That said, some parents have diametrically opposed positions on these topics. If the court finds that the parents are unable to make joint legal custody decisions without constant dispute, the court may award one parent sole legal custody. In yet another variation as it relates to legal custody, the court may award one parent sole legal custody as it relates to educational decisions and award the other parent sole legal custody as it relates to making educational and/or religious decisions. The court decides this by determining what is in the children’s best interests. Whatever your position is as it relates to legal custody, you must develop the evidence with your counsel to evidence to show the court why your position on legal custody is in the children’s best interest.
A trend with any award of physical or legal custody is for a court to appoint a parenting coordinator. A parenting coordinator is a third party who can resolve disputes between the parties in real-time, and if necessary, make recommendations to the court for changes in parenting if the parties still cannot agree. Ultimately one parent does not have to have primary custody. It is what the evidence shows the judge is in the children’s best interests. This is what a skilled attorney does—help you develop the evidence—to have the best possible outcome in your custody case based on your legal objectives. This blog is written by attorneys at Ciyou & Dixon, P.C. who handle custody cases of all types throughout Indiana. This blog is written to provide general educational information. It is not intended to provide the reader with legal advice, nor is it a solicitation for legal services. It is an advertisement.
- To aid the court, some parents request a guardian ad litem be appointed to investigate and report to the court what physical and legal custody arrangement is in the children’s best interests. Some cases require more expertise that a guardian ad litem and a parent may request, and a court order a custody evaluation be conducted by a clinical psychologist. Be aware of these tools and discuss them with your counsel.
