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Indiana Divorce FAQ's - Parenting

This is about custody and visitation after divorce in Indiana, including the effect on custody and visitation of misconduct of the parents, mental health of the parents, and the rights of grandparents in Indiana.

This information is from Lisa Garcia Reger, the DivorceInfo Network Lawyer for Indiana. Click here to visit her firm's web site.

How does custody get decided as between a parent and a third party?

In a custody dispute between a child's natural parent and a third party, under Indiana common law, it is presumed to be in the best interest of the child to remain in the custody of the parent. This serves to protect the parent's right to be free from unwarranted interference by third parties into a parent's fundamental relationship with the child. In order for a third party to secure custody of a child over the objection of a natural parent, the third party must show by clear and cogent evidence that the parent is unfit or has acquiesced in or voluntarily relinquished custody to the third party for such a long period of time that the affections of the child and the third party have become so interwoven that to sever them would seriously mar or endanger the future happiness of the child.

How does custody get decided as between parents?

A Court determines custody in accordance with the best interests of the child. In determining what's in the child's best interests, there is no presumption favoring either parent. The Court considers all relevant factors in determining the best interests of the child 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 14 years of age, the interaction and relationship of the child with the child's parents, the child's sibling and any other person who may significantly affect the child's best interests, the adjustment of the child to his home, school and community, the mental and physical health of all individuals involved, or evidence of a pattern of domestic violence by either parent. The Court can interview the child in chambers to ascertain the child's wishes. The Court or either party may request psychological evaluations for the purpose of determining the best interest of the child.

What’s the terminology for custody?

A parent can be awarded sole custody of a child. In that case, that parent would be entitled to make all major decisions regarding that child without the benefit of consulting with the non-custodial parent.

The Court may also award joint legal custody of a child to the parents. An award of joint legal custody does not necessarily require an equal division of physical custody of the child. One parent can be the primary physical custodian. In sharing joint legal custody of the minor child, the parties must be able to work together to make the major decisions on behalf of the minor child. Such major decisions would include religion, schooling, medical treatment. Day-to-day decisions are made by the parent having care of the child. In determining whether an award of joint legal custody is in the best interest of the child, the Court should consider it of primary importance whether or not the parties have agreed to an award of joint legal custody. The Court should also consider the fitness and suitability of each person awarded joint custody, whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare, the wishes of the child with more consideration given to the child's wishes if the child's at least 14 years of age, whether the child has established a close and beneficial relationship with both parents awarded joint custody, whether the persons awarded joint custody live in close proximity of each other and plan to continue to do so and the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.

Is there a presumption in favor of not changing custody arrangements?

The Court may not modify a custody order unless the modification is in the best interests of the child and there is a substantial change in one or more of the factors the Court may consider in granting a custody order. Those factors include: 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 14 years of age; the interaction in a relationship with the child's parent or parents; the child's sibling and any other person who may significantly affect the child's best interests; the child's adjustment to the child's home, school and community; the mental and physical health of all individuals involved; and evidence of a pattern of domestic violence by either parent.

What effect does the misconduct of one of the parents have on custody?

In the event that a custody order has already been entered and the custodial parent is denying visitation to the non-custodial parent, a non-custodial parent can apply for a Penn anent injunction or a temporary restraining order prohibiting the custodial parent from denying visitation rights if that non-custodial has been granted visitation rights and regularly pays support for the child. In the event that a Court finds that a custodial parent has intentionally violated the injunction or restraining order, this may also be considered a relevant factor in determining whether or not a change of custody is in the best interest of the child.

What effect does the mental health of one of the parents have on custody?

The mental health of the parents is a relevant factor for the Court to consider in determining custody. This means that mental health records of a party can be subpoenaed by the opposing party.

What effect does the preference of the child have on custody?

The wishes of the child is one of the relevant factors a Court may consider in determining custody. A Court will give more consideration to the child's wishes if the child is at least 14 years of age. Often times in a custody case, the Court, upon the request of one or both of the parties or upon the Court's own motion, will interview the children in chambers.

How does visitation get set?

Effective March 31, 200 I, the State of Indiana has adopted statewide guidelines entitled Indiana Parenting Time Guidelines. In the event that the parties cannot reach an agreement on visitation, the Court will likely impose the Indiana Parenting Time Guidelines. Prior to the implementation of the Indiana Parenting Time Guidelines, each county had a different set of visitation guidelines. Older cases which come up for review before the Court will be bound to the guidelines in place in their court order unless both parties agree to use the new Indiana Parenting Time Guidelines.

Is there such a thing as "standard visitation"? If so, what is it?

Effective March 31, 2001, the State of Indiana has adopted the Indiana Parenting Time Guidelines. The typical visitation for a non-custodial parent of a child over 3 years old is alternating weekends from 6:00 p.m. Friday to 6:00 p.m. Sunday and one day per week from 5:00 p.m. to 8:00 p.m. The guidelines also outline the division of holidays and summer vacation. For children under 3 years of age, there is generally no overnight visitation. However, the visiting parent sees the child more days during the week and gradually increases the time spent with the child as the child gets older.

Is there a standard visitation pattern when the non-custodial parent is in a different state from the child? If so, what is it?

No answer.

What rules govern cases where the custodial parent wants to move away with the children?

In the event that a custodial parent desires to move the residence of the child to a place outside the State of Indiana or at least 100 miles from the individual's county of residence, the custodial parent must file a Notice of Intent to Move with the Clerk of the Court that issued the custody order and send a copy of the Notice to the parent who is not awarded custody and who has been granted visitation rights. Upon the request of either party, the Court will set the matter for a hearing for the purpose of reviewing or modifying, if appropriate, the custody, visitation and support orders. The Court must take into account the distance involved in the proposed change of residence and the hardship and expense involved for the non-custodial parent to exercise visitation rights in determining whether to modify custody, visitation and support orders.

What visitation rights do grandparents have, if any?

In the State of Indiana, if a marriage is intact, grandparents have no right to request visitation. A child's grandparent may seek visitation rights if the child's parent is deceased, the marriage of the child's parents has been dissolved in Indiana, or if the child was born out-of-wedlock and paternity rights have been established. The Court may grant visitation rights to the grandparent if the Court determines that the visitation rights are in the best interest of the child. In determining the best interest of the child, the Court may consider whether a grandparent has had or attempted to have meaningful contact with the child. In order for a grandparent to seek visitation rights, a grandparent must file a petition with the Superior Court of the county in which the child resides or in the court having jurisdiction over the dissolution of marriage. In the event that a Court determines that visitation rights are in the best interests of the minor child, the Court, in its discretion, sets those visitation rights. There are no set guidelines for grandparent visitation rights.

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