Indiana Custody Rules
At Indiana Divorce Mediation LLC, we understand that child custody is one of the most hotly contested issues in family law because it involves one of the most important parts of YOUR life – your children. Consequently, this is an issue that is frequently litigated in a court of law and frequently destroys any possibility of cooperation for the divorcing couples. Worse yet, the process may rob your child of his or her one and only childhood.
Therefore, Indiana Divorce Mediation offers pro-se mediation services to couples who need to determine an appropriate custody/parenting time schedule. The chances of arriving at a fair and equitable decision without spending your child’s college fund and especially without destroying your ability to parent together in the future are improved a thousand-fold if you reach those decisions through mediation.
Be sure to check out the section about parenting time before you decide to fight about custody.
Some things you should know about child custody before you decide to litigate:
LEGAL AND PHYSICAL CUSTODY
“Legal custody” refers to the parents’ right to make major decisions for or on behalf of the children while “physical custody” refers to the parents’ right to provide the child’s primary residence. Neither category refers to the amount of time the child spends with each parent, which is referred to as “parenting time.”
BURDEN OF PROOF IN A CUSTODY PROCEEDING
A parent seeking custody in a dissolution action has the burden of proving it is in the child’s best interests for that parent to have sole physical custody. And – having more income will never be a consideration in this decision! The primary factor a court will consider in a custody fight is which parent provided the child’s primary care during the marriage.
A parent seeking to modify an existing custody order, however, has the additional burden of proving that a substantial and continuing change of circumstance has occurred in the custodial home such that the existing custody order is no longer in the child’s best interests. The change of circumstance cannot be that the noncustodial parent seeking custody has a better job or a bigger house or a new spouse to care for the children. In the event of litigation, the Court will render a decision only after weighing the statutory factors set forth in I.C. 31-17-2-8.
But remember this before initiating a custody fight! Absent proof of some kind of danger to the child, the noncustodial parent is going to have overnight parenting time with the children up to 41% of the time even if the other parent has sole physical custody. The minimum parenting time set forth in the Indiana Parenting time Guidelines will include alternating weekends, alternating holidays, half of the summer and can include one midweek overnight each week for children over five (151 overnights per year). The 9% difference between equal parenting time and Guideline parenting time is the equivalent of 3 extra overnights per month). How much money are you willing to spend and how much heartache are you willing to cause to prevent your spouse from having 3 extra overnights per month?
Be aware that a willingness to share more than the minimum amount of parenting time will frequently prevent the incredible heartache, ugliness, and expense of a custody fight and will give your children the benefit of having more than the minimum amount of time with the two people they love the most.
You will need an experienced litigator if your circumstances require a custody fight. However, do not let a “shark” talk you into a custody fight if you and your spouse are both good parents, live in close proximity to each other, and are capable of valuing the role each parent plays in the lives of your children.
AVOIDING CUSTODY PROCEEDINGS
There are several websites that help parents avoid the adversarial process and teach them how to co-parent as they move through the separation process and beyond.
www.uptoparents.org is intended to help divorcing parents preserve their children’s one and only childhood.
www.proudtoparent.org is intended to help never married but separating couples with children.
www.nodivorcetoday.org is intended to help parents who are contemplating separation but wish to save their marriage.
www.collaborativepractice.com is a website that explains the legal process of formal collaboration.