How Do Courts Determine Child Custody in Indiana?

According to the official statistics from the state of Indiana, there were approximately 27,500 divorce filings in 2020, a decrease of around 2500 cases from 2019.   https://publicaccess.courts.in.gov/ICOR/.  Even though divorce cases only represent a small percentage of civil case filings (less than 10%), they can take a large amount of court time to litigate custody and visitation disputes.

Custody and visitation disputes, by their nature, tend to be extremely fact sensitive. Parties often misunderstand the difference between custody and parenting time.  The following discusses how courts determine child custody in Indiana.

What is Child Custody?

When the courts consider child custody, they think of custody in two different ways. There is legal custody, which is mostly about decision-making involving major issues such as education, religion, and healthcare.  In addition, there is physical custody, which are the arrangements involving where the child will live (which can be with both parents, or with only one parent).

What are the Two Types of Legal Custody?

There are two types of legal custody –  Joint legal custody and Sole legal custody.

The cornerstones of joint legal custody are the ability of the parents to communicate and cooperate with each other, whether the parties live in close physical proximity to each other, and whether the child has developed a close, beneficial relationship with both of the parties. If these factors are present, a court is likely to award joint custody, in which the child will live with both parents.[1]

Sole legal custody is normally awarded when the parents have extreme difficulties in communicating and/or there have been issues of domestic violence or substantial drug abuse which makes coparenting very difficult for the parties.  In Sole legal custody, only one parent has the authority to make all decisions associated with the upbringing of the child.

Does Joint Custody Mean That Children Will Spend Equal Time with Both Parents?

No.  Under Indiana Code 31-17-2-14, a joint custody order does not require an equal division of physical custody.  Instead, joint custody only provides that both parents will have physical custody of the children in accordance with the custody schedule in the order.  The order may provide for approximately equal physical time with each of the parents, or one parent may have significantly more physical time than the other parent.

Do Custody Hearings Have Priority in Indiana?

Yes.

Under Indiana Code 31-17-2-6, custody proceedings must receive priority settings for hearings. Unlike other civil cases, custody and visitation disputes are resolved by the court without a jury.

What Factors Do Indiana Courts Consider in Awarding Custody?

Indiana law provides nine factors for the court to look at in determining custody which include:

  • the age and sex of the child;
  • the wishes of the parents;
  • the wishes of the child, with more consideration given to the child’s wishes if the child is at least 14 years of age;
  • the interaction and interrelationship of the child with the parents, siblings, or any other significant persons;
  • 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;
  • evidence that the child has been cared for by a de facto custodian; and
  • the designation in a power of attorney of the child’s parent or de facto custodian.  A de facto custodian is a person who is been the primary caretaker and primary financial support of a child who has resided with the person for at least six months if the child is less than three years old or one year if the child is at least three years of age.

There are certain circumstances where the law creates a separate set of custody or parenting time rules based upon the circumstances of one of the parents. For example, if the noncustodial parent has been convicted of a crime involving domestic or family violence that was witnessed or heard by the child, then there is a rebuttable presumption that the court shall order that the noncustodial parent’s parenting time with the child be supervised for at least one year and not more than two years following the crime or until the child becomes emancipated (whichever comes first). The court may also require the noncustodial parent to complete a batterer’s intervention program as a condition of granting unsupervised time. [2]

How Do Military Deployments Affect Custody Determinations?

There are specific statutes dealing with parents who are members of the military being deployed. Under certain circumstances, the court may allow a military parent to delegate their parenting time to another individual if that is in the child’s best interest. [3]A court may not consider a parent’s absence or relocation due to active military service as a factor in determining custody or permanently modifying a child custody order. [4]

Do Courts Make Investigations to Determine Child Custody?

The court has a number of tools which the court can use to make custody decisions or parenting time decisions. The court may order an investigation and report concerning custodial arrangements for the child to be performed by social services, juvenile court staff, local probation department, a private agency, a guardian ad litem or court-appointed special advocate.

Generally, the person or agency performing the investigation would consult with the parties, the children, significant people involved in the children’s lives such as counselors or teachers and make recommendations to the court about custody and parenting time. [5]These reports may carry a great amount of weight for the court, but they are not binding on the court or the parties.

How Does Drug Use Affect Child Custody Determinations?

If a parent has a history of unlawful drug use or there is a reasonable likelihood that the parent is currently using unlawful drugs, the court may require that a parent submit to drug testing as a condition of exercising parenting time. [6]If the court makes this type of an order, the parent shall pay the cost of the drug testing and the court shall determine the manner and frequency of drug testing. The court may talk to the children in the judge’s office which is known as an “in camera” interview. [7]The court may also order counseling for the child if the court believes that this is necessary. [8]


[1] Indiana code 31-17-2-15.

[2] Indiana Code 31-17-2-8.3.

[3] Indiana Code 31-17-2-21.1.

[4] Indiana Code 31-17-2-21.7.

[5] Indiana Code 31-17-2-15.

[6] Indiana Code 31-17-2-22.

[7] Indiana Code 31-17-2-9.

[8] Indiana Code 31-17-2-16.

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