FAQ: Child Custody
The divorce court determines child custody twice - at the provisional hearing and at the Final Hearing. Child custody determines child support obligations and parenting time rights. After the Final Hearing, what the Decree ordered for custody, support and parenting time may be modified. I have more on post-dissolution modification in following pages.
The only question regarding the children is what in their best interests. "Best interests" does not include who has the most money, or who has the better house. Indiana law makes it quite clear that a parent’s wealth does equal a better parent. The law explicitly says that no presumption exists between mothers and fathers as being a preferred custodian of their children. One does not need to prove the other parent unfit. Unfit means something so bad that the best interests are obvious to one and all - they are the black and white cases. I will tell you that the majority of custody disputes are not black and white but involve different shades of gray. Indiana’s statute on child custody does give us a rule or a definition of best interests. What the statute does give us is a list of factors that a court must consider in a custody dispute. This list is as follows:
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) 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.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
I view custody issues through this statute. They require attention to detail and we will need to work hard to bring those details before the court - interviewing and preparing witnesses, discovery, and then presenting all this to the judge. In the end, the judge has wide discretion in awarding custody. So long as any evidence supports the judge, his decision will be upheld on appeal. This makes custody difficult for all.
For more specific and current information, take a look at my custody articles at Indiana Divorce and Family Law blogs
The only question regarding the children is what in their best interests. "Best interests" does not include who has the most money, or who has the better house. Indiana law makes it quite clear that a parent’s wealth does equal a better parent. The law explicitly says that no presumption exists between mothers and fathers as being a preferred custodian of their children. One does not need to prove the other parent unfit. Unfit means something so bad that the best interests are obvious to one and all - they are the black and white cases. I will tell you that the majority of custody disputes are not black and white but involve different shades of gray. Indiana’s statute on child custody does give us a rule or a definition of best interests. What the statute does give us is a list of factors that a court must consider in a custody dispute. This list is as follows:
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) 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.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
I view custody issues through this statute. They require attention to detail and we will need to work hard to bring those details before the court - interviewing and preparing witnesses, discovery, and then presenting all this to the judge. In the end, the judge has wide discretion in awarding custody. So long as any evidence supports the judge, his decision will be upheld on appeal. This makes custody difficult for all.
For more specific and current information, take a look at my custody articles at Indiana Divorce and Family Law blogs