How Does a Court Decide Child Custody in Indiana?

The eight factors that a judge analyzes before awarding custody

Asking a court to decide custody is a simple process in Indiana. A proceeding for custody is started by a parent filing a petition for divorce, legal separation or child support. Once any of these are filed, the court is required to schedule a hearing and decide custody.

The simple nature of Indiana’s custody law leaves a lot of room for judicial discretion. If a parent does not resolve their case, Indiana law gives the judge significant authority to make custody and parenting time decisions. Further, Indiana law allows the court to bring the child into court for an interview—involvement by the child that many child development experts find damaging to children.

How does a judge decide who should get physical custody?

Indiana law makes clear to fathers that despite popular opinion in our culture of which sex is typically thought to be the better parent, those preconceptions won’t enter into the judge’s decision. Indiana’s custody law begins by declaring there is no presumption favoring either parent in determining what is in the child’s best interest—meaning the judge will make no assumptions of either parent’s abilities and both parents start on level footing.

The underlying policy in all phases of child custody is the requirement the court decide custody based on the best interests of the child. To determine this, Indiana law requires a court consider all relevant factors. However, the law lists only eight simple factors that the judge will analyze to determine the type of custody to award each parent:

  1. The age and sex of the child
  2. The wishes of the child's parent or parents
  3. The wishes of the child, with more consideration given to the child's wishes if the child is at least 14 years of age
  4. The interaction and interrelationship of the child with:
    • the child's parent or parents
    • the child's sibling
    • and any other person who may significantly affect the child's best interests
  5. The child's adjustment to the child's home, school and community
  6. The mental and physical health of all individuals involved
  7. Evidence of a pattern of domestic or family violence by either parent
  8. Evidence that the child has been cared for by a de facto custodian

The eighth factor deals with situations in which another adult or grandparent may have provided significant care for the child. If a third party potentially meets the requirements for a de facto custodian, they are required to be included in the custody proceeding.

How can custody be divided?

The label of physical custody is another way of stating which parent’s home will serve as the child’s primary residence. Physical custody can be granted as “sole” to one parent, or divided as “joint” between both parents. Joint physical custody means the child’s home is divided between both parents—a situation perhaps meant best for parents who live in close proximity.

Non-custodial parents still must receive reasonable parenting time

If one parent is awarded sole physical custody, Indiana law requires the non-custodial parent receive a reasonable amount of time with their children. That is unless parenting time by the non-custodial parent might endanger the child. In those cases, parenting time may be limited or supervised. Endangerment is a difficult standard to prove, so it’s very likely the non-custodial parent will receive parenting time. How much will depend on what is reasonable for the child.

What is reasonable parenting time with a parent will depend heavily on that parent and that parent’s record of participating in the child’s life. As in custody, the court will be required to decide parenting time based on what is in the best interests of the child. That means that for caring, supportive parents, there is nothing in Indiana custody or parenting time law that states a non-custodial parent cannot enjoy the same amount, or more, of parenting time with their child as the custodial parent.

Parents who want to put themselves in the best position to resolve their custody dispute should consult with an experienced Indiana family law attorney. The attorney can draw on their experience to negotiate a deal in your child’s best interests—or prepare Indiana parents who face the possibility of having a stranger judge decide their contested matter. If you'd like more general information about this area of the law, see our custody and visitation law overview.

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