As a parent going through a divorce, preserving your relationship with your children is undoubtedly at the top of your list of priorities. In Indiana, neither the mother nor the father is favored in custody proceedings; rather, each parent is given equal consideration in structuring an arrangement that will serve the best interests of the child or children involved.
Whether your goal is to secure primary custody or visitation rights, you and your spouse intend to try co-parenting, or you have other goals with regard to custody and parenting time, you need to make sure that your custody arrangement works for you and complies with Indiana law. As you begin to prepare for your divorce, here are 10 key child custody-related considerations to keep in mind:
Indiana law recognizes two different types of custody: legal and physical. Legal custody refers to the right to make decisions about your child’s education, healthcare and general upbringing, while physical custody refers to the right to provide a primary residence. Typically (though not always), divorced parents will share legal custody, and one will have primary physical custody while the other has rights of visitation.
Shared custody (also referred to as “joint custody”) means that both parents have custody rights. With regard to legal custody, this generally means that the parents must jointly make important decisions affecting their children. With regard to physical custody, this generally means that the couple’s children will split time between both parents’ residences.
Shared physical custody is different from sole custody with visitation. In a shared custody situation, the child will typically spend equal time (or close to equal time) with each parent. When one parent has visitation rights, his or her time with the couple’s children will generally be more limited.
When establishing custody and visitation rights – whether in a private setting or through the Indiana courts – all decisions must be made in the best interests of the child or children involved. This is done by balancing seven primary factors (the “best interests” factors) that take into consideration the family’s unique circumstances. In Indiana, the “best interests” factors are:
For more information about how some of these factors play out, you can read: How is Custody Determined in Indiana?
If you and your spouse will not be living together during your divorce, you will need to make temporary custody arrangements while your divorce is pending. This can be done through agreement (which is typically the case); or, if necessary, with court involvement. A temporary custody arrangement will not necessarily have any impact on the final outcome of your divorce.
Indiana law encourages divorcing parents to develop “parenting plans” that satisfy their respective needs and desires while also serving their children’s best interests. Parenting plans should be detailed and comprehensive, and they should address considerations such as:
When building your parenting plan, you will likely make extensive use of Indiana’s Parenting Time Guidelines. These guidelines are useful not only insofar as they provide recommendations and “standard” provisions for divorcing parents who are struggling to come to terms, but also for purposes of making sure that you do not overlook any important considerations while building your plan.
With emotionally-charged issues such as child custody, it is common for divorcing spouses to reach points of disagreement. If you and your spouse find yourselves struggling to complete your parenting plan, you will have a few different options available. These include:
For spouses who are not able to come to terms and who will likely continue to face conflicts after their divorce is final, the Parenting Time Guidelines offer a solution referred to as parallel parenting. In a parallel parenting arrangement, the parents’ post-divorce interactions are limited until their feelings of ill-will have subsided.
When going through a divorce, it is important to try to foresee as many potential issues as possible. The Indiana courts expect parenting plans to largely be considered “final,” and modifications are permitted only under limited circumstances.
Likewise, when you agree to a parenting plan, the courts expect you to uphold the terms of your agreement. The penalties for violating the terms of custody or visitation can be significant, and it is far better to seek a modification than to knowingly violate a parenting plan.
One of the most-common scenarios that brings up questions of modification and enforcement is parental relocation. If you anticipate moving after your divorce (either out-of-state or within Indiana), this is absolutely something you will want to address during the divorce process. After your divorce, your former spouse will be able to challenge your attempt to move; and, in order to relocate, you may need to convince a judge that you have a good-faith and legitimate reason for doing so.
Carmel Divorce attorney Joshua R. Hains has over a decade of experience representing clients in complex family law matters. If you are contemplating a divorce and have questions about child custody, we encourage you to call (317) 688-1305 or contact us online to arrange a free and confidential consultation.