The court considers many factors when making a custody determination, including each parents’ parenting plan and any custody agreement the parties have reached. Ideally, a parenting plan is created by both parents, working together, and all other custody arrangements are outlined in a custody agreement for the court’s approval. In approximately 95% of custody cases this is what happens. The other 5% require court intervention. This blog explores parenting time plans and custody agreements as they are considered by the court when making a child custody decision.
Indiana’s custody order statute (I.C. 31-17-2-8) provides, in relevant part, that a custody decision will be made according to the child’s best interests and lists, as one of the factors the court will consider when determining the child’s best interests, the wishes of the parents. In order to ensure that the court knows exactly what custody and parenting time arrangement you want, you should submit agreements on both to the court, or if no agreement can be reached, create your own custody and parenting time plan for the courts consideration. The Indiana courts provide an application that may be used to create a visual parenting time calendar based on the parenting time guidelines. Keep in mind that while custody and parenting time agreements will be taken into account in any custody decision, they do not have to be approved by the court (Stone v. Stone, 991 N.E.2d 992 (Ind. App. 2013)).
A court may modify or refuse to accept a custody and parenting time agreement if it finds that the agreement is not in the best interests of the child (In re Marriage of Kraft, 868 N.E.2d 1181 (Ind. Ct. App. 2007)). This may occur if any of the provisions have the potential to be unworkable or are vague or ambiguous, such that the agreement may lead to future litigation (Beaman v. Beaman, 844 N.E.2d 525 (Ind. Ct. App. 2006)). Agreements lacking provisions for parenting time or child support may also be modified or refused by the court (In re Paternity of T.G.T, 803 N.E.2d 1225 (Ind. Ct. App. 2004)). In fact, an agreement waiving a parties child support obligation may be found to be void as against public policy, or even fraudulent where the agreement is for shared custody which the parties never intended to exercise (Dunson v. Dunson, 744 N.E.2d 960 (Ind. Ct. App. 2001)).
A parenting time and custody plan should include a description of who has physical custody of the child, or with whom the child will normally reside, and which parent will have legal custody, or the authority to make major decisions in the child’s life, such as healthcare, religious training, and education. Physical custody can be shared, with each parent having the child 50% of the time, or the parent who will have the child more often can be designated as the primary custodian, or custodial parent, and the other parent the non-custodial parent. Legal custody may be sole or joint and should be based on the best interests of child, considering how well the parties can communicate and cooperate to make decisions about the child, each parents relationship with the child, how closely the parties live to one another, and each parents suitability to share joint legal custody (I.C. 31-17-2-15).
Other issues that should be covered in a custody and parenting time plan include each parties’ responsibility for furnishing transportation to and from school, extra-curricular activities, and social events, the parties obligations to provide financial support for clothing, school fees, supplies, photos, field trips and functions, extra-curricular activities, unexpected expenses, and other events (fatherhood.gov). If regular parenting time, holiday, summer, or birthday schedules will deviate from the parenting time guidelines these schedules, as well as the reason for the deviation, should be described in detail in order to avoid any confusion or questions from the court regarding the deviation. Working through the guidelines and outlining how each particular issue covered will be handled, such as communication with the child, the exchange of the child’s school and healthcare information, and make-up parenting time can help ensure that the court approves the custody and parenting time plan.
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.
