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Family Law – Child Custody and Parenting Time

Sole Custody v. Joint Custody:

A child custody proceeding can either be filed by the parent or a person other than the parent seeking a determination of custody for that child.[1] The court may award parents joint legal custody if the court finds that it would be in the child’s best interest; however, this does not mean equal division of physical custody.[2]

In determining whether joint legal custody would be appropriate the court looks at several factors, with some overlap of the factors regarding the best interest of the child. The factors for joint legal custody are:

(1) fitness and suitability of each person awarded joint custody;

(2) the willingness and ability of the persons awarded joint custody to communicate and cooperate in advancing child’s best                        interest;

(3) child’s wishes;

(4) whether there’s a close and beneficial relationship with both persons awarded joint custody with the child;

(5) whether the persons awarded joint custody live, and intend to remain in close proximity to each other; and

(6) the physical and emotional environment of the home. [3]

This link provides for the Indiana Parenting Time Guidelines under the Indiana Rules of Court: http://www.in.gov/judiciary/rules/parenting/index.html


What are the Best interest of the child factors:

There are several relevant factors that help a court determine the best interest of a child regarding which parent should have custody:

  1. the age and sex of the child;
  2. the child’s parent(s)’ wishes;
  3. the child’s wishes, more consideration is given if the child is over 14 years of age;
  4. the interaction and interrelationship of the child with its parents, siblings, and others who may significantly affect the child’s best interest;
  5. the child’s ability to adjust to home, school, and community;
  6. the mental and physical health of all parties involved; and
  7. any evidence of domestic or family violence.[4]


What limitations does the custodial parent have regarding authority:

In Indiana, typically the custodian parent will have the authority to determine the child’s upbringing, which can include the child’s education, health care, and religious training.[5]  The only limitation comes after a motion by the noncustodial parent that in the absence of a specific limitation of the custodian’s authority that the custodial parent is significantly endangering the child’s mental health or emotional development.[6]


Modification of custody – when is custody generally modified:

Generally, a court cannot modify a custody order. However, a court can if the modification would be in the best interest of the child or if there was a substantial change in one of the factors that considers the best interest of the child.[7]  Further if a custodial parent has intentionally violated a temporary restraining order or injunction, the court must consider this in a custody modification hearing.[8]


Relocation of Parent or Child’s Residence:

In general, if a parent who has joint custody of a child and intends to move the parent will need to file a notice to court.  The court will examine the relevant factors and if need be will set a hearing to determine if the custody order, parenting time order, grandparent visitation order, or child support order need to be modified.[9]  The parent that intends to move must also serve notice to the non-relocating individual not later than 90 days before the moving date.[10]


Visitation/ Parenting Time:

Typically, a parent who is not granted custody of the child is entitled to reasonable parenting time so long as there is no “endanger[ment] of the child’s physical health or significant[ ] impair[ment] [of] the child’s emotional development.”[11]


Modification, Denial or Restriction of Visitation Rights:

In general, Indiana courts cannot modify an order granting parenting time rights, except for if it would be in the child’s best interest; this exception is narrowly limited to only if the “parenting time [would result in] endanger[ing] the child’s physical health or significantly impair the child’s emotional development.”[12]

[1] I.C. § 31-17-2-3(1)-(2).

[2] I.C. § 31-17-2-13 ; I.C. § 31-17-2-14.

[3] I.C. § 31-17-2-15(1)-(6).

[4] I.C. § 31-17-2-8(1)-(8).

[5] I.C. § 31-17-2-17(a).

[6] I.C. § 31-17-2-17(b).

[7] I.C. § 31-17-2-21(a)(1)-(2).

[8] I.C. § 31-17-2-22.

[9] I.C. § 31-17-2.2-1(a)-(c).

[10] I.C. § 31-17-2.2-3(a)(1)(A)-(B).

[11] I.C. § 31-17-4-1(a).

[12] I.C. § 31-17-4-2.