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Child Custody Attorney
In Indiana, there is both physical custody and legal custody. Legal Custody is the right to make major decisions involving your childrens educational and religious training and medical care. Physical Custody is where the children live. The party that the children live with makes the day-to-day decisions involving the children, such as what time they do their homework and go to bed. Most parties share joint legal custody with one party having the primary physical custody. However, more and more, parties are embracing a joint physical custody arrangement that attempts to work with everyones schedule and be in the best interest of the children.
When a couple separates, and the Court either establishes paternity (parties not married) or divorces the parties, an initial determination of legal and physical custody is made. At an initial determination, neither party is favored. There is no presumption for any party in Indiana. Legal and physical Custody at an initial determination is based on the standard of the best interest of the child. If a party wants to change legal and/or physical custody after the initial determination, that party must show both that a substantial and continuing change in circumstances has occurred, and that it is in the best interest of the child for the custody arrangement to be modified. It is very difficult to change physical custody after the initial determination, and typically the noncustodial parent must show that the substantial and continuing change of circumstances involves the custodial parent and their home. It is not enough that there has been a change for the better regarding the situation of the noncustodial parent. It is also not enough that a child wants to live with the noncustodial parent. The law in Indiana requires that a Court review a specific list of factors in determining whether to change physical custody, and there must be a substantial and continuing change related to one of those factors to even open the door to a physical custody change. However, even if it can be demonstrated that there has been a substantial and continuing change, it does not necessarily follow that the child would be better off under a different physical custody arrangement. Essentially, a change in physical custody is complicated and difficult under most circumstances. It can be done, but it is not to be undertaken lightly.
Child Custody Myths
Child Custody Myth 1: The children get to choose which parent they want to live with
The wishes of the child are never the deciding factor in determining custody. Indiana courts make initial physical custody determinations based on only one standardthe best interest of the child. If the child is aged 14 years or older, the court may take the expressed wishes of the child into consideration, but the custody decision is completely at the courts discretion.
Child Custody Myth 2: The Courts prefer the Mother in determining physical custody
Under Indiana law, there is no preference for either party in an initial physical custody determination. The standard is the best interest of the child.
Child Custody Myth 3: To modify physical custody, a party must only show that the change is in the best interest of the children
The initial determination of physical custody is based on the best interest of the child. However, once physical custody is determined, there is an assumption that the custodial parent is a fit and proper parent. To change custody after an initial determination, the noncustodial parent must show 1) that there has been a substantial and continuing change of circumstances, and 2) that it is in the best interest of the children for physical custody to be modified. Typically, the substantial and continuing change in circumstances must be related to the custodial parent.
LEGAL DISCLAIMER “The information you obtain at this website is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Review of this website does not in any way constitute legal representation. Contacting James Wiesneth or the Wiesneth Law staff does not constitute legal representation, nor is any information you provide protected by attorney-client privilege until otherwise advised. All Statements regarding Family Law and procedure refer to the practice of Law in the state of Indiana.“