While there is a general assumption that mothers will always get physical custody in a divorce, this is a somewhat antiquated belief, as fathers are becoming the custodial parent more and more often. In fact, according to the U.S. Census Bureau, a little over 20% of custodial parents in 2019 were fathers. This is due in part to changing family dynamics as well as updated custody statutes which do not favor either parent when making an initial custody determination. This blog discusses the criteria Indiana courts now use to decide physical custody during divorce and how custody determinations are changing.
When mothers stayed home to care for the children and fathers went to work to earn a living, mothers were simply granted physical custody, as the children’s primary caregiver, and fathers ordered to continue supporting the family, as the primary bread winner. As these traditional gender roles have changed, so too have the way courts determine physical custody. Indiana Code § 31-17-2-8 governs initial custody determinations, such as those made during a divorce. The statute provides that custody awards will be made based on the best interests of the child and that there shall be no presumption favoring either parent.
Indiana courts consider all relevant factors when determining the best interests of the child. Statutory considerations include the age and sex of the child, how the child has adjusted to his or her current home, school, and community, and the child’s relationship with his or her parents, siblings, and any other person who may significantly affect the child, evidence of domestic violence, the mental and physical health of all parties, and the wishes of both the parents and child, with more weight given to the child’s wishes if he or she is at least 14 years old. While each of these factors may be argued individually in favor of one parent or the other, it is the circumstances taken as a whole that determines the best interests of the child.
Children usually form a closer relationship to and a stronger bond with the parent providing their primary care. So, while there may be no presumption in the law favoring either parent, the truth is, most mothers do more of the child rearing than do fathers. As far as gender roles have advanced, mothers are still expected to find their children more important than providing for their family, serving their country, or following any of the number of paths long since open to men. And many of them still do. This leaves courts granting physical custody to mother instead of father in a majority of custody cases.
So, while the law may be changing to keep up with the times, gender expectations and biases are still affecting custody determinations in divorces. These, however, can be overcome and the experienced attorneys at Ciyou & Associates, P.C. can help you decide which best interest factors are more important in your situation and ensure that you present the most valuable evidence to your position. This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.
