In Indiana, there are two (2) type of “custody”: physical custody and legal custody. Either one may be sole in one parent or joint. Sole physical custody is the presumption under Indiana law. The parent who does not get sole physical custody will be given Indiana Parenting Time Guideline time at a minimum. Legal custody, on the other hand, can sole or joint. Legal custody is making decisions about a child’s religious upbringing, education, and health care. This blog explores how joint custody of a child works.
The place to start with any legal query is with the controlling law. As noted, joint physical custody is not the norm. However, the trend is joint physical custody, and the court can order joint physical custody if the evidence establishes it is in the children’s best interests. In making any physical custody order, including one for joint physical custody, the court considers several statutory factors put forth in the Divorce Act.
If the Court does, in fact, order joint physical custody, that still leaves a key question that you will have to develop in the evidence. This is key as the court is not going to order joint physical custody if the evidence does not show it is workable. What joint physical custody arrangement is in the children’s best interests? This likely has you asking what the choices are. The choices are limitless but will be dictated by the distance between the parents, school schedules, and the like. This noted, joint physical custody may be week-on, week-off. This works particularly well with younger children who are not yet in school.
If the children are school age, then normally the parents share joint physical custody on a rotating daily basis, such as 3-2-2-3 or 5-2-2-5. This is no specific rotation required or the courts follow. However, rotating physical custody raises a lot of logistical issues between each parent. For this to avoid winding back up in court because it does not work, there should be very precise evidence placed on the record of all details of the alternating schedule so there is no ambiguity whatsoever in rotation.
All in all, joint legal custody will only work if there are cooperative parents. If this is not the case, the court will order primary physical custody in one parent and Indiana Parenting Time Guideline time in the other parent. That said, it is very likely in today’s legal world that the judge will order time above that ordered in the Indiana Parenting Time Guideline time, as this is minimum parenting time, so long as it is in the children’s best interests. For children over the age of three (3), this is every other weekend, one night a week, alternating holidays and one-half of the summer. Judicial views are generally that the non-custodial parent should have as much time as possible.
With legal custody, the Divorce Act appears to encourage judges to award joint legal custody so long as “. . .the court finds that an award of joint legal custody would be in the children’s best interests.”
With legal custody, if the parents cannot agree on a certain type of issue, such as religion, the court may parcel out legal custody and make some legal custody decisions joint and others sole. For instance, if parents have diametrically opposed views religion (e.g., Methodist versus Baptist), then the court will likely determine it is the children’s best interests that one parent have sole legal custody on religious upbringing and joint legal custody on medical care and educational decisions. This raises the question of which parent the court would choose for to award sole custody to make religious decision. Generally, the parent who will be most considerate to the other parent and try to make religious decision work between the parents is who the court would select.
Presupposing the parents get along—or generally get along—joint custody may be ordered by the trial court in the children’s best interests. This takes careful development and presentation of the evidence in court. Without such evidence, the court is likely to award sole physical and legal custody to one parent. This blog was written by attorneys at Ciyou & Associates who handle domestic cases of all types throughout the state. This blog is written for general educational purposes. It is not intended as legal advice or a solicitation for services. It is not to be relied upon for any given legal matter or issue. The blog is an advertisement