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How Does a Court Determine Custody and Visitation Rights?

How Does a Court Determine Custody and Visitation Rights?

Child custody litigation constitutes a significant amount of all civil litigation in Indiana. The major difference between domestic litigation and the balance of civil litigation in Indiana is the remedy—money (which is the normal case). A personal injury case is one common example of civil litigation where money sought is the remedy. Unfortunately, with divorce, the family is dissolving the marriage so there are no good solutions for a judge to implement in a divorce case. Nevertheless, courts have a great deal of guidance from the statutes in the Divorce Act and caselaw applying these statutes.1 Ultimately, as it relates to the children, the court makes the custody and parenting time decisions2 in the children’s best interests. This blog addresses how trial court goes about making custody and parenting time determinations based on the evidence presented at trial.

As it relates to child custody, it is key to note there are two (2) type of custody—physical custody and legal custody. The presumption with physical custody is one parent will get physical custody (meaning the child spends more overnights with that parent) and the other parent gets Indiana Parenting Time Guideline time as a minimum. As a general rule for a child over three (3) years of age, minimum Indiana Parenting Time Guideline time is one night during the week, every other weekend, alternating holidays and half of the summer. Legal custody, on the other hand, is who makes the decisions about the children’s health, education, and religion. With custody and parenting time, the over-arching principle guiding the court is to make each decision in the child’s best interests.

When deciding physical custody, the court has a statutory set of factors it considers in making a custody determination in the child’s best interest: “The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption in favoring either parent. The court shall consider all relevant factors, including the following: (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 siblings; 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. The mental health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent. (8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter. (9) A designation in a power of attorney of (A) the child’s parent; or (B) a person found to be a de facto custodian.”

Legal custody, on the other hand, has nothing to do with who the child spends a majority of nights with or parenting time. It is very narrow. It is which parent gets to make the decisions about the child’s education, medical care, and religious upbringing. This is a statute in the Divorce Act that may be viewed as encouraging courts to order joint legal custody (there is no such statute in the Divorce Act). This statute sets out that a court may award legal custody of a child if it finds an award of legal custody is in the best interests of the child.3 This noted, an award of legal custody does not require an equal division of physical custody of the child.4

With legal custody, “[i]n determining if an award of joint legal custody would be in the best interests of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall also consider: (1) the fitness and suitability of each of the persons awarded joint custody; (2) whether the persons awarded joint legal custody are willing and able to communicate and cooperate in advancing the child’s welfare; (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) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody; (5) whether the persons awarded joint custody: (A) live in close proximity to each other; and plan to continue to do so; and (6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.” 5

This blog on the types of custody was written by attorneys at Ciyou & Associates, P.C. It is intended to provide general educational information on the types of custody that exist under Indiana law. The blog is written is not to be relied upon for any legal matter or issues. This blog is not legal advice. It is an advertisement.


  1. The paternity statutes mirror the divorce statutes so the analysis of one issue is the same as the other. Thus, only divorce is addressed in this blog post.
  2. The term “visitation” is no longer used for the non-custodial parent’s time—they get parenting time pursuant to the Indiana Parenting Time Guidelines. Visitation is only used in domestic law in two (2) situations. One is where a court orders a party to have supervised “visitation”. Indiana Code section 31-17-2-17(b). The second is where grandparents seek grandparent visitation. Indiana Code section 31-17-5-1.
  3. Indiana Code section 31-17-2-13.
  4. Indiana Code section 31-17-2-14.
  5. Indiana Code section 31-17-2-15.
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