Steps to Obtaining a Change of Custody in Indiana
The process of requesting a change of custody in Indiana is rather straight forward. In fact, all one needs to do in order to request a change is simply file a petition to modify an existing parenting time or custody order. The real challenge, however, is having the request granted by the Court; which is quite rare and often requires the assistance of an experienced Indiana family law attorney who is adept at navigating and handling custody and parenting time proceedings.
If you’re in a situation where a change of custody is needed, the Indiana child visitation lawyers at Keffer Hirschauer LLP are available to assist you. Our team fully understands the gravity of these types of situations and is well acquainted with the complex legal and emotional elements at play. To speak with an attorney today, call 317-857-0160 or complete our online contact form to schedule a free consultation.
The Basics of Custody Orders and Parenting Time in Indiana
Before requesting a change of custody in Indiana, it’s important to have a strong grasp on the differences between legal custody and parenting time; as well as other related topics, like the parenting time guidelines and the best interest of the child standard.
First, it should be noted that legal custody refers to a parent who is responsible for making long-term decisions about important aspects of the child’s life. In some situations, the court may award both parents legal custody, which is called joint legal custody. In such cases, the parents must confer and agree on major child-rearing matters like schooling, medical care, religious instruction, etc.
In other situations, a court may elect to award one parent legal custody, otherwise known as sole legal custody. When this occurs, the parent with sole legal custody may make decisions regarding major child-rearing matters without considering the wishes or opinions of the other parent.
Parenting time, or what many people call “physical custody,” refers to the parent with whom the child is staying according to the parenting time schedule. In Indiana, parenting time schedules are often determined by both parents working together to develop a schedule using the Indiana Parenting Time Guidelines. Generally, the guidelines hold that it is in the child’s best interest to have a parenting time schedule that provides meaningful and frequent contact with each parent. However, when determining a schedule, courts and parents may also consider logistical matters such as how far the parents live from each other and issues transporting the child between homes.
Parents crafting a parenting time schedule may notice that Indiana’s parenting time guidelines differ depending on the age of the child. For example, a schedule for children that are over the age of three-years-old and live near their non-custodial parent will include alternating weekends, one evening each week, and scheduled holidays and school breaks. For children that are over the age of five, however, the parenting time schedule includes half of summer vacation, or, if the school runs year-round, half of fall and spring break.
The guidelines also differ based on the distance between the custodial and noncustodial parent’s homes. When the distance is considerable, children ages three and four may have four non-consecutive weeks during the year with the non-custodial parent. However, this may only occur if that parent gives at least 60 days’ notice of the particular week they’d like to have the child stay with them.
The Best Interest of the Child Checklist
When two parents are in dispute over a parenting schedule, each may submit a proposed parenting time schedule to the court. Once submitted, the court will set an evidentiary hearing on the matter, which will allow for a judge to determine the schedule. When making such determinations, courts are required to consider the various factors contained in Indiana’s best interests of the child checklist. As provided in Indiana Code 31-17-2-8, the factors that shall be considered include:
- The age and sex of the child
- The wishes of the child’s parents
- The wishes of the child, with wishes of children 14 or older carrying more weight
- The child’s relationship with their parents and any siblings
- The child’s adjustment to home, school, and community
- The mental and physical health of the child and parents
- Evidence of violence by a parent
- Evidence that a de factor custodian cared or cares for the child
Disputes and Change of Custody in Indiana
Once the court has issued a parenting time or child custody order, it shall be enforced until a modification has been granted by the court. If one (or both parents) do not agree with the existing order, and wish to modify it, they may, however, request a modification to parenting time or a change of custody.
To request a change of custody in Indiana, a parent will need submit a petition requesting such change to the court that presided over the original order. As stated in Indiana Code 31-17-2-21 the court may NOT modify a child custody order, unless (1) the modification is in the best interests of the child; and (2) there is a substantial change in one or more of the factors listed in the best interest of the child checklist. If the court does choose to make a modification to the custody order, they must again do so while considering all factors listed in the best interest of the child checklist.
As for modifications to parenting time, Indiana Code 31-17-4-2 allows for courts to “modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child.” The law does, however, state that “the court shall not restrict a parent’s parenting time rights unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.”
While the process of modifying a parenting time order or making a change of custody in Indiana may seem straightforward, it’s highly recommended that any parent wanting to submit a petition to the court first speak with an experienced Indiana child custody lawyer. This will better ensure that the petition is completed and filed to the satisfaction of the court, and that the arguments contained in the petition adequately demonstrate why the modification is necessary.
Arguments for Modifying Parenting Time or Custody in Indiana
Prior to submitting a petition to modify parenting time or make a change of custody in Indiana, it’s important to understand that Indiana courts are generally not inclined to modify these types of orders. In fact, courts will typically only do so when the child’s safety is endangered, or their emotional development is being impaired.
When working with a parent to modify a parenting time order or make a change of custody, our custody lawyers in Indianapolis will often seek to demonstrate that, since the last order was issued, the other parent’s behavior has created a danger to the child and/or has a negative impact on their emotional development. Depending on the specific circumstances of the case at hand, a modified court order could result in supervised or reduced parenting time, parenting time dependent upon completion of counseling, rehabilitation, or abstinence from drugs and alcohol.
In contrast, when working with a parent who is seeking more parenting time or would like to have joint legal custody, our family law attorneys often use documented evidence (parenting time notes, text message or email correspondence) to show that the parent has increased their participation in the child’s life and/or worked in cooperation with the custodial. Some examples of this type of evidence include active participation in the child’s academic life, like attending student-teacher conferences or participating in/volunteering at school events; playing an active role in the child’s extracurricular activities, like coaching a sports team or taking them to lessons; moving closer in proximity to the custodial parent’s home; attending the child’s medical appointments; etc.
Need Help with a Change of Custody in Indiana?
Child custody disputes are often very emotional and intense, especially those involving a change of custody in Indiana. To ensure an optimal outcome in matters like these, you’ll want to hire one of the best custody lawyers in Indianapolis, like those at Keffer Hirschauer LLP.
To speak with an attorney today, call 317-857-0160 or complete our online contact form to schedule a free consultation. Our team is available to help assess the appropriateness of your request, draft and file your petition, or defend against requests by the other parent that harm your ability to see your child.