Child custody issues often arise in divorce, paternity, and post-dissolution cases. There are two forms of custody: physical custody and legal custody. Physical custody is a reference to the parent with whom the child spends most of his or her time. Legal custody references which parent has the right to make major decisions for the child, including but not limited to education, health, and religion. Parents can have sole or joint physical or legal custody, and all current trends are recognizing that joint legal and some form of joint, or shared, physical custody, is in the best interests of the children, absent specific issues such as drug use or domestic violence.
The standard Indiana courts use when determining custody is the “best interests of the child.” There are eight factors that courts will consider when determining custody, which include: age and sex of the child; wishes of the child’s parent or parents; wishes of the child, with more consideration given if the child is over 14 years of age; interaction and interrelationship of the child with the child’s parents, siblings and other significant persons; the child’s adjustment to his/her home, school and community; the mental and physical health of all individuals involved; whether there has been a pattern of domestic violence and whether the child has been primarily cared for by another person.
Parenting time, formerly known as visitation, will be established for the “non-custodial” parent, or, for both parents in a shared custody arrangement, after a determination of custody has been made by agreement or ordered by the court. It is always preferred that the parties reach a schedule or arrangement on their own; however, if they are unable to do so, Indiana has enacted the Indiana Parenting Time Guidelines, to give the court a starting point, and which provide a detailed parenting time arrangement and various provisions on how the parenting time should be structured, including but not limited to parenting time exchanges, transportation, and telephone communication.
In high conflict custody battles, it is common for parties to hire a private custody evaluator to interview both parties, the children, and/or other relevant individuals. The custody evaluator, generally a licensed mental health professional, who then provides a recommendation about custody and parenting time to the court based on the interviews and information and data gathered. The court then may, but is not required to, consider the evaluation before making a final judgment as to custody and parenting time. Certain counties offer this type of evaluation at a reduced cost, such as the Domestic Relations Counseling Bureau in Marion County which offers such services.