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Child Custody & Parenting Time

Most children experience major life changes both during and after divorce. We appreciate the delicate nature of custody and parenting time issues.  When custody and/or parenting time become a contested issue in your divorce, our role is to implement practical arrangements that protect your rights and serve your child’s best interests.

Custody of the minor child is comprised of legal custody and physical custody.  Legal custody centers on making major life decisions for the child.  Physical custody refers to where the child primarily resides.

Legal custody refers to the parent’s ability to make major decisions regarding the child’s education, health care and religion.  In the vast majority of divorce matters, parents are able to share joint legal custody.  If the parents disagree on fundamental issues, such as whether the child will attend private, public or home school; whether the child will be treated for medical conditions, illness and behavioral issues; and what religion the child will practice, then it may be in the child’s best interests for one parent to have sole legal custody.

In determining whether one parent should have sole legal custody, the court is required to consider:

  • The fitness and suitability of the persons who would share legal custody
  • Whether the persons who would share legal custody are willing and able to communicate and cooperate to advance the child’s welfare
  • The wishes of the child so long as the child is at least 14 years of age
  • Whether the child has a close and beneficial relationship with the persons who would share legal custody
  • Whether the persons who would share joint legal custody live in close proximity to each other and whether they plan to continue to live close to one another
  • The nature of the physical and emotional environment in the home of each person who would share joint legal custody

Physical custody is a concept that is decades old and it is often confused with the modern concept of parenting time.  It is important for parents to understand that the antiquated concept of physical custody cannot always transform to meet the multitude of diverse family structures and dynamics that we enjoy in the 21st century.  Physical custody simply refers to where the child primarily resides, and is determined by what the court considers to be in the child’s best interests.  Contrary to popular belief, there is no presumption favoring either parent at the outset of a custody dispute.  The parenting time arrangement is more important that the physical custody label.

In determining physical custody, the court is required to consider:

  • The age and sex of the child
  • The wishes of each parent
  • The wishes of the child so long as the child is at least 14 years old
  • The interaction of the child with each parent, with siblings and with any other person who may significantly affect the child’s best interests
  • The child’s adjustment to his or her school, home and community
  • The mental and physical health of all individuals involved
  • Evidence of a pattern of domestic and/or family violence by either parent
  • Evidence that the child has been cared for by a “de facto” custodian

If the parties are unable to agree on legal and/or physical custody arrangements, the court will consider evidence on the above-listed factors and make its determination based on what it believes will serve the child’s best interests.

The court has 2 options for legal custody: joint (the parents must work together to make decisions) or sole (one parent has the exclusive right to make decisions).  Likewise, the court has 2 options for physical custody: joint(the child resides equally with each parent) or primary (the child resides at one parent’s residence more than the other parents).  Sharing joint legal custody does not require that the parents also share joint physical custody.

Should one parent have primary physical custody of the minor child, the other parent (the “non-custodial parent”) is entitled to reasonable parenting time with the minor child.  At a minimum, the non-custodial parent is entitled to unsupervised parenting time pursuant to the Indiana Parenting Time Guidelines.  In certain situations, unsupervised parenting time with the non-custodial parent might endanger the child’s physical health or significantly impair the child’s emotional development.  In these circumstances, it is possible to limit the non-custodial parent’s parenting time and/or to impose conditions, such as supervision, on the non-custodial parent’s parenting time.

Our firm recognizes that securing a particular custody and/or parenting time structure is often the critical issue for the client involved in a divorce.  We have developed a reputation for taking a firm and aggressive stance to protect what is most important to you.  As each family is unique, we recommend that you schedule a no-risk consultation so that we can learn the specifics of your situation and develop a plan that will safeguard the best interests of your children.