Custody - General
Generally, a court is going to look at what is in the best interests of the child when deciding custody. In making a decision about what is in the best interests of the child, a court must consider the following factors:
- The age and sex of the child.
- The wishes of the child’s parent or parents.
- The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
- The interaction and interrelationship of the child with the child’s parents, siblings and other people who affect the child’s best interests.
- The child’s adjustment to the child’s home, school, and community.
- The mental and physical health of all individuals involved.
- Evidence of a pattern of domestic or family violence by either parent.
Physical Custody
There are two different types of custody under Indiana law: physical custody and legal custody. Physical custody is where the child lives most of the time. In most cases, one parent has physical custody and the other parent has visitation or parenting time. In some cases, parents do have joint physical custody, which means that the child spends equally the same amount of time with each parent, whether the parents alternate days, weeks, or another similar schedule.
Legal Custody
Legal custody, on the other hand, refers to the right of parents to make important decisions about their child, such as with respect to education and medical care. Parents who share joint legal custody must work together to make decisions jointly about their child. Many parents share joint legal custody, but one parent often still has sole physical custody.
Establishing Custody (when parents are not married)
When a child is born, parents have the option of signing a paternity affidavit in the hospital. This document legally establishes paternity and places the father’s name on the birth certificate. When a man signs a paternity affidavit, it states on the affidavit that the mother has sole custody of the child and the father has the right to reasonable visitation.
If there is no paternity affidavit signed, then the parent wanting to establish custody will have to file a paternity case in court to first establish paternity. The child support prosecutor in each county can assist with establishing paternity and child support (but they will not assist with obtaining a parenting time or custody order). Once paternity is established, either parent can ask for custody and parenting time orders.
Modifying Custody
The court can change custody after a custody order has been established by the court. However, it is difficult to get a court to change custody, because courts don’t like to move children around a lot.
To modify custody it must be proved that modifying custody is in the best interests of the child to change custody AND that there has been a substantial change in one or more of these factors:
- The age and sex of the child.
- The wishes of the child’s parent or parents.
- The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
- The interaction and interrelationship of the child with the child’s parents, siblings and other people who affect the child’s best interests.
- The child’s adjustment to the child’s home, school, and community.
- The mental and physical health of all individuals involved.
- vidence of a pattern of domestic or family violence by either parent.
- Evidence that the child has been cared for by someone other than a parent for at least six months to a year, depending on the child’s age. This person is called a “de facto custodian”. If there is a “de facto custodian,” the court shall consider:
- The wishes of the child’s de facto custodian.
- The extent to which the child has been cared for, nurtured, and supported by the de facto custodian.
- The intent of the child’s parent in placing the child with the de facto custodian.
- The circumstances under which the child was allowed to remain in the custody of the de facto custodian, including whether the child was placed with the de facto custodian to allow the parent now seeking custody to work, look for work, or go to school.
Third Party Custody
If a man signs a paternity affidavit for a child, it legally establishes paternity for the child. However, the mother of a child born outside of marriage has sole custody of the child, unless (or until) a court says otherwise. The paternity affidavit does entitle the father to reasonable visitation rights with the children pursuant to the Indiana Parenting Time Guidelines. Either parent can file a paternity case in court to establish parenting time (among other things such as custody and child support).
If there is no paternity affidavit signed, then the parent wanting to establish parenting time will have to file a paternity case in court to first establish paternity. The child support prosecutor in each county can assist with establishing paternity and child support (but they will not assist with obtaining a parenting time or custody order).
Once paternity is established, either parent can ask for custody and parenting time orders. The non-custodial parent is usually given visitation in accordance with the Indiana Parenting Time Guidelines.
If a man signs a paternity affidavit for a child, it legally establishes paternity for the child. However, the mother of a child born outside of marriage has sole custody of the child, unless (or until) a court says otherwise. The paternity affidavit does entitle the father to reasonable visitation rights with the children pursuant to the Indiana Parenting Time Guidelines. Either parent can file a paternity case in court to establish parenting time (among other things such as custody and child support).
If there is no paternity affidavit signed, then the parent wanting to establish parenting time will have to file a paternity case in court to first establish paternity. The child support prosecutor in each county can assist with establishing paternity and child support (but they will not assist with obtaining a parenting time or custody order).
Once paternity is established, either parent can ask for custody and parenting time orders. The non-custodial parent is usually given visitation in accordance with the Indiana Parenting Time Guidelines.
If a man signs a paternity affidavit for a child, it legally establishes paternity for the child. However, the mother of a child born outside of marriage has sole custody of the child, unless (or until) a court says otherwise. The paternity affidavit does entitle the father to reasonable visitation rights with the children pursuant to the Indiana Parenting Time Guidelines. Either parent can file a paternity case in court to establish parenting time (among other things such as custody and child support).
If there is no paternity affidavit signed, then the parent wanting to establish parenting time will have to file a paternity case in court to first establish paternity. The child support prosecutor in each county can assist with establishing paternity and child support (but they will not assist with obtaining a parenting time or custody order).
Once paternity is established, either parent can ask for custody and parenting time orders. The non-custodial parent is usually given visitation in accordance with the Indiana Parenting Time Guidelines.
If a man signs a paternity affidavit for a child, it legally establishes paternity for the child. However, the mother of a child born outside of marriage has sole custody of the child, unless (or until) a court says otherwise. The paternity affidavit does entitle the father to reasonable visitation rights with the children pursuant to the Indiana Parenting Time Guidelines. Either parent can file a paternity case in court to establish parenting time (among other things such as custody and child support).
If there is no paternity affidavit signed, then the parent wanting to establish parenting time will have to file a paternity case in court to first establish paternity. The child support prosecutor in each county can assist with establishing paternity and child support (but they will not assist with obtaining a parenting time or custody order).
Once paternity is established, either parent can ask for custody and parenting time orders. The non-custodial parent is usually given visitation in accordance with the Indiana Parenting Time Guidelines.
Minor Guardianship
Establishing Guardianship
A guardianship can be established for a child if the guardianship is necessary as a means of providing care and supervision of the physical person or property of a minor child. If the child’s parents are unable and/or unwilling to take care of the minor child, and you are able/willing to care for the child, then a non-parent can petition for minor guardianship in probate court. A guardianship case should only be filed if no other court has made orders regarding the children (see Third Party Custody below).
Terminating a Guardianship
If a guardianship has already been ordered by the court, then either the parent or current guardian can petition to terminate the guardianship. To terminate the guardianship, it must be proven that the guardianship is no longer necessary. The person wishing to terminate the guardianship will also need to prove that circumstances have changed since the guardianship was entered, and that it is now in the child’s best interests to have the guardianship terminated and be returned to the parent’s care.
Third Party Custody
If a court has previously issued a custody order in a divorce case or paternity case, a separate guardianship case cannot be filed. Instead, the non-parent wanting custody of a child would need to file for Third Party Custody in the case already filed in court. The court will generally grant custody to a third party (which is a non-parent) if it is “necessary” for the care of the child.
