Child custody arrangements vary widely between divorced couples (or those who have children born out of wedlock) and are decided by a court based on what is in the children’s best interests. Where the battle lines are typically drawn between the litigants is who gets “residential custody” of the children. Although the specific term “residential custody” is not found in the Divorce or Paternity Acts, it refers to which parent will have physical custody over the children. This blog addresses the key aspects of “residential custody” or primary physical custody.
Under Indiana law, the presumption is one parent gets primary physical custody over the children and the other parenting time distinguished under the Indiana Parenting Time Guidelines. For children over the age of three (3), the parenting time is generally one night each week, every other weekend, half the summer, with the parents alternating the holidays. However, there is a strong legal trend toward joint physical custody. This can be accomplished in many ways. For instance, the parents may share week-on, week-off parenting time. This works better when the parents live in close proximity to each other or before the children are in school. Joint physical custody may be accomplished in other ways such as a rotation of days such as 5-2-2-5. The way to obtain joint physical custody is to develop the evidence with skilled domestic counsel as to why this is in the children’s best interests. Then present this evidence to the court.
In many cases, joint physical custody is not in the children’s best interests. This does not mean that one parent is simply going to obtain sole physical custody. This is because, with the right evidence, the court may provide the non-custodial parent with more parent time during the week or over the weekend. There are numerous permutations of additional parenting time. The key is to provide evidence to the court of why the presumption of sole physical custody and Indiana Parenting Time Guideline time is not in the children’s best interests. Instead, additional parenting time through the week, such as two nights a week, or additional time over the weekend is in the children’s best interests.
When considering “residential custody” or primary physical custody, it is important to remember that the court also has to determine legal custody as well. Legal custody covers who makes the decisions about the children’s education, religion, and schooling. Legal custody can be sole or joint or the court can apportion each of these legal custody decisions between the parents. Again, the court decides this on the evidence it hears from the parties in court. It then decides the matter based on what is in the children’s best interests. If you seek sole legal custody or joint legal custody, you must develop and present to the court what is in the children’s best interests. This takes skilled legal counsel.
This blog is written by attorneys at Dixon & Moseley, P.C. Its attorneys handle custody cases throughout Indiana. This blog is provided as general educational material. It is not intended to be advice for your situation or a solicitation for services. It is an advertisement.
