Divorcing parents in Indiana should have no greater concern than for the healthy transition of the children to the new reality after divorce. Key to the kids' stability and happiness is a living arrangement that supports their best interests.
Usually parents try to negotiate a settlement agreement setting out with whom the children will live and when they will see their other parent. If the soon-to-be ex-spouses cannot agree on these crucial issues, the court must step in and decide according to Indiana law.
Both legal custody and physical custody must be determined. "Legal custody" asks who is responsible for the "upbringing" of the child by making major decisions affecting the child like religious, educational and medical. "Physical custody" asks with whom the child will primarily live. Both types of custody may be granted jointly between the parents or solely to one.
If the Indiana court decides on child custody, it must consider the child's best interests. The law does not automatically presume that either will make the better custodial parent. The statute directs the court to weigh "all relevant factors," specifically including the following:
- The child's gender and age
- The parents' wishes
- The child's wishes, especially if he or she is 14 or older (the court is allowed to interview a child in chambers)
- The relationship of the child with the parent, siblings and any other important person
- The child's "adjustment" to his or her current home, school and the greater community
- The child's and parents' (and other important people's) physical and emotional health
- Domestic violence
- The circumstances of any other person caring significantly for the child
"Parenting time" or "visitation" means time a parent is scheduled to spend with a child who mostly lives with the other parent. Indiana views parenting time as a significant personal right of a noncustodial parent and the court may only restrict it if it decides after a hearing that the parent poses a significant physical or emotional risk.
Indiana court rules prefer that parents create their own parenting plan with a parenting-time schedule that meets the individual needs within the family. For guidance, the rules contain extremely detailed commentary about visitation aspects helpful to kids at various stages of development. If the parents are unable or unwilling to negotiate a comprehensive agreement themselves, the court must decide visitation issues for the family.
Before deciding matters of custody or visitation, the judge is required by Indiana law to first decide whether a referral to mediation might be appropriate and affordable. Mediation uses a neutral third party to help the parties try to negotiate an agreement themselves.
If you face divorce, including potential issues of child custody and visitation, see an experienced family law attorney as early as possible to learn about your rights and the legal issues as they may play out in Indiana.