Child Custody—Who Gets It, and What is it Based On?

Child custody is often the stickiest issue in family law cases. The custody determination impacts both parents in very personal ways. If you are facing a divorce or paternity lawsuit, you probably share some of these concerns:

• Wouldn’t I be the better parent?
• Will my relationship with my child suffer if I don’t custody?
• Living on my own will be a financial strain, if I don’t get custody, will I also have to pay support?
• I want my child to be raised in the church, and that won’t happen if I don’t get custody
• I want to be the one making dental and medical decisions for my child.

If these areas of concern resound in your heart, you are not alone. As attorneys, we hear statements like these in most cases. In Indiana, the laws require the court to evaluate several different factors when resolving child custody issues. But in all cases, the underlying motive is to determine best interests of the child. This article provides a brief overview of the custody laws and how they work.

Legal Custody in Indiana

The first problem with Indiana cases is the misuse, or varying uses, of the term “custody.” Most clients believe that the term “legal custody” equates to “who gets the kids.” But that simply isn’t the case. Most cases result in parents having “joint legal custody,” and that has little to do with who gets the kids. In fact, Ind. Code §13-17-2-14 specifically states that an award of joint legal custody under section 13 of this chapter does not require an equal division of physical custody of the child. So what is “legal custody?” According to Ind. Code §13-17-2-17 legal custody gives a parent the right to “determine the child’s upbringing, including the child’s education, health care, and religious training.”

For the courts award joint legal custody, they must first determine that it is in the best interest of your child. In doing so, they may also consider the following factors:

• Are both parents fit and suitable to have joint legal custody?
• Are the parents willing to communicate in regard to the child’s upbringing?
• What does the child wish (especially if the child is at least 14)?
• Has the child established a close and beneficial relationship with both parents?
• In regard to geography, do both guardians plan to live within a close proximity to each other?
• What is the nature of the physical and emotional environment in each parent’s home?

Physical Custody/Parenting Time

As you can see, Indiana’s custody statutes assign a different meaning to the terms “legal custody” and “physical custody.” So what factors go into determining who gets physical custody-does the law favor the mother? Indiana’s statutes suggest not. Ind. Code §31-17-2-8 specifically states that there is no presumption favoring either parent.

As with legal custody, the courts are to consider: (1) the best interests of the child as the primary goal, and (b) a list of factors in determining physical custody, or parenting time. These factors include:

• The parents’ wishes
• The age and sex of the child
• The child’s wishes (especially if the child is at least 14)
• The child’s relationships with both parents (/guardians), siblings, and other family members.
• The child’s adjustment to the schools, homes, and community.
• If there is any history of domestic abuse.
• The mental and physical health of all persons involved.

The parties are encouraged by Indiana Law to come to their own agreement on proper parenting time, based upon the unique situation of their particular family.

Looking for Some Help?

If you’re facing a child custody battle and need advice or representation, contact the Law Office of Thomas E. Scifres, P.C. I want to work with you toward the most sensible result that ensures the well-being of your child.