The terms joint and sole custody are frequently used by parties in a custody case, but what do they really mean? In Indiana, there are two types of custody, physical and legal. Both joint and sole custody are used to refer to legal, not physical custody, however, many use the terms when discussing physical custody. This blog explains joint vs. sole custody in Indiana and the key differences between the two.
Physical custody pertains to the child’s living arrangements and who takes care of the child, providing for their daily needs. The words sole and joint are no longer used to define the physical custody rights of a parent. Instead, Indiana uses the terms “primary custodian” or “custodial parent” to describe the parent with whom the child lives with most of the time, and “non-custodial parent” when referring to the child’s other parent. In cases where the child spends an equal amount of time with each parent, living in both parent’s homes, the term “shared custody” or “shared parenting” is now used (Ind. Par. Time Guid. IV).
Legal custody refers to a parent’s authority to make important decisions about the child’s upbringing, such as religious training, education, and healthcare1. When a child is born out of wedlock, the mother has sole legal custody unless and until a court orders otherwise2. Parents who are married when a child is born, and remain married to one another, share joint legal custody and each has the same right as the other to make decisions for the child. When parent’s divorce, the child’s primary custodian has sole legal custody, unless the dissolution decree specifically addresses legal custody1. Legal custody may be granted to either parent, regardless of physical custody and parenting time arrangements3, or joint custody may be granted to both parents.
In order to grant joint custody, a court must find that it is in the best interests of the child4. When deciding whether to make a joint legal custody award, the court will refer to the statute governing matters considered when making a joint custody award5 which provides that it is of “primary importance” that the parties have agreed to joint legal custody. The statute then enumerates the factors it will also consider when making a determination. These factors include, “(1) the fitness and suitability of each of the persons awarded joint custody; (2) whether the persons awarded joint 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 (B) 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.”
Most divorcing or separating parties are granted joint legal custody, giving them equal authority to make major life decisions for the child. However, when the parties cannot communicate effectively and get along well enough to cooperate with one another in raising the child while living in separate households, the court will usually not entertain an award of joint custody. This means that having the ability and willingness to discuss child rearing issues, reach compromises, and come to agreements without court intervention is important when asking for an award of joint legal custody.
Most often when a person refers to a parent in Indiana as having “sole” or “full” custody what they mean is that the parent is the primary custodian, has sole legal custody, or that the non-custodial parent has little to no parenting time with the child.
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.