As Indiana divorce lawyers, one of the questions that we are asked the most is “If my spouse and I cannot agree on who will have primary custody of the children, what happens?”
It’s important to distinguish legal custody and physical custody.
Legal custody is decision-making. Physical custody is the allocation of time with the child between the parents. Legal custody requires the parties to be able to communicate to work on issues for the children. Joint custody, by statute, means that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child’s upbringing, including the child’s education, health care, and religious training..
If the parties cannot agree on legal custody, then the court analyzes a number of factors to determine who should be awarded legal custody.
In determining legal custody, by law the court can consider the age and sex of the child, the wishes of the parties, the wishes of the child, any history of domestic violence, the child’s adjustment to the child’s community, the mental and physical health of all parties, and several other factors.
There are no presumptions favoring either parent in custody awards.
Absent issues with domestic violence or substance abuse, most divorcing couples in Indiana will have joint legal custody, but physical custody or parenting time could range from minimum guidelines to equal parenting time. The court can impose joint legal custody even though the parties don’t think they can agree on major issues. Married couples don’t agree on everything as it relates to their children as well! Having joint legal custody does not mean that you have the same amount of time with the child as the other parent.
If the parties cannot agree on parenting time, then the court has several options to address this issue. At the start of the divorce case, either party may ask for temporary orders. These temporary orders are designed to clarify custody and parenting time arrangements between the parties while the case is pending. If neither party asks for provisional orders, then either party may try to get the children whenever they can.
This can cause a great amount of conflict between the parents and the children when there are no rules. I’ve had cases where one parent will try to pick up the child early from school to deny the other parent the ability to get the child. Inevitably, the next day the other parent will pick up the child even earlier or pull the child out of school. The police will generally not intervene unless there is a court order in place (and may not intervene even with a court order in place).
In high conflict cases, it is critical to try to get temporary parenting time orders in place as soon as possible to avoid this type of chaos. The court’s decision on temporary orders can have a substantial impact on the ultimate decision by the court. If one parent has every other weekend as part of the provisional order, it’s going to be very difficult for that parent to have primary physical custody at a final hearing unless the other parent has significant issues while the case is pending. If one parent has essentially equal parenting time with the other parent, it is very likely that the parties will end up with something similar to that unless there are significant changes in the interim.
Provisional orders may be in effect for several months. If the court finds that there have been no significant issues with the provisional parenting time, the court may feel that there is no reason to change the parenting time as part of the final order.
If the parties cannot agree on parenting time, the court can appoint a guardian ad litem or custody evaluator to do an investigation and prepare a report to the court with recommendations about parenting time in custody. The parties, through their counsel, may have input on who is selected to serve in this capacity. The person performing the evaluation generally will be a person known to the court and the parties and will have substantial experience in family law matters.
As result, the report from the evaluator can carry a great amount of weight with the court. Generally, the parties have the report in advance of any final hearing or mediation so that they have the opportunity to understand the recommendations. In many cases, the parties end up accepting the recommendations of the evaluator as part of the final agreement. The report, however, is not binding on the parties. In some cases, the court hears additional information and/or decides that the evaluator is incorrect in their analysis.
The Indiana Supreme Court recently modified the Indiana Parenting Time Guidelines in 2022. One of the modifications was a new section that is designed to help the parties determine if they can make shared custody work. This appendix notes “Shared Parenting requires not just a sharing of time and responsibility for raising the child, but a conscious effort to create two homes that are highly unified when taking care of a child and making decisions for the child.” The appendix asks the parents to consider certain questions to determine if share parenting time would work. The questions are as follows:
– Do you understand all of the things a parent needs to do in one’s own household and in coordination with the other parent’s household when committing to Shared Parenting?
– Do you understand what the court expects of parents who commit to Shared Parenting?
– Do you and the other parent agree about this?
– Does the other parent take steps to shield your child from your disagreements?
– Does your child believe you have significant disagreements in child-relevant areas?
– Does the other parent take steps to portray a positive relationship to your child?
– Does your child believe you and the other parent like each other?
While not binding on the parties, this list will likely be used by the parties and the court in making parenting time decisions.
 Indiana Code 31-9-2-67
 Indiana Code 31-14-13-2.
 Indiana Code 31-14-13-2.