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Divorce 101: Child Custody FAQ

On Behalf of | Dec 18, 2014 | Firm News

In Indiana, there are two types of custody: physical custody and legal custody. Here are some other questions you may have about custody in a divorce case:

Is one parent presumed to be the primary physical custodial parent?

In Indiana divorces, neither parent is presumed to be the custodial parent. If the parties cannot agree on physical custody, the Court will hold a hearing and determine which parent is best suited to be the primary physical custodian. The Court will consider many factors in this hearing, including:

  • The age and sex of the child.
  • The wishes of the child’s parent or parents.
  • The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
  • The interaction and interrelationship of the child with the child’s parent or parents, the child’s sibling, and any other person who may significantly affect the child’s best interests. This includes evidence of who was the primary caregiver of the children during the parties’ marriage.
  • 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.

The primary consideration for the court is what is in the best interests of the child/children.

What are the Indiana Parenting Time Guidelines?

The Indiana Parenting Time Guidelines (“IPTG”) are a set of guidelines for parents of children whose parents are separated through divorce or paternity cases. The IPTG includes guidelines for minimum parenting time for the non-custodial parent, extended parenting time is (i.e., summer parenting time), holiday parenting time, communication, and transportation. A copy of the guidelines can be found here.

Do the IPTG automatically apply to your case?

Yes, the IPTG applies to all cases involving child custody, unless your case involves family violence, substance abuse, risk of flight with a child, or any other circumstances the court reasonably believes endanger the child’s physical health or safety, or significantly impair the child’s emotional development. It is common, however, for the court or parties by agreement to lay out a specific parenting plan that may differ from the minimum parenting time laid out in the IPTG. A court (or the parties by agreement) can also modify any other provisions of the guidelines that it finds should be modified for a certain case. It’s also important to know that if the last order issued in your case was from before March of 2013, there are different guidelines that apply to your case.

What is the minimum parenting time laid out in the IPTG?

The minimum parenting time is laid out in section 2 of the IPTG. The guidelines have phased in parenting time for young children. Once a child is 3 years or older, the parenting time for the non-custodial parent is one night a week for up to four hours, alternating weekends from Friday at 6 p.m. until Sunday at 6 p.m., one-half of the summer vacation, and one-half of the holidays.

What are common deviations from the minimum parenting time?

Courts have the discretion to give the non-custodial parent additional parenting time beyond the minimum parenting time laid out in the IPTG. Some possible deviations are to add an overnight on the midweek parenting time or the Sunday of the alternating weekend. When parties are able to craft their own settlement agreements they are able to be as flexible and creative with their schedule as they want. This is one major advantage to settling a case without going to court.

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