Sole Custody vs. Joint Custody: Which is Right for You?

Many parents talk about sole custody, usually referencing physical custody of the child. However in Indiana, the term sole custody is no longer used to describe physical custody arrangements. Knowing the different types of custody and the correct terminology is important in any discussion about child custody. This blog explores sole vs. joint custody and the words and phrases currently used by the court when referring to custody so that you can be better equipped to determine which custody arrangement is right for you. 

Indiana recognizes two forms of child custody: physical and legal. Physical custody is exactly what it sounds like, where the child is physically located, or more generally with which parent the current court order says the child should be with at any given moment. Shared custody is the most common type of physical custody in Indiana. Termed “joint custody” not so long ago, shared custody arrangements allow each parent to have the child approximately 50% of the time and both parties homes are considered to be the child’s home as well (Ind. Par. Time Guid. IV(B)). This type of custody requires parents to communicate with one another more frequently than other types of arrangements and oftentimes to be more accommodating and cooperative when navigating school and work schedules, extra-curricular activities, and family appointments (Ind. Par. Time Guid. IV(B) Comm.).  

When shared parenting is not appropriate for a family, one parent will be named as the primary physical custodian of the child and the other parent granted parenting time pursuant to Indiana’s parenting time guidelines. While parties are encouraged to work out custody and parenting time arrangements on their own and create a parenting time plan that works best for their child and their family without court supervision, the court does ultimately become involved in a small percentage of contested custody cases (Legaljobs). When making a custody decision, the court will enter its order based on the best interests of the child. To determine the child’s best interests, it will consider the factors enumerated in the custody order statute, including but not limited to the age and sex of the child, their adjustment to their home, school, and community, any history of domestic violence in the family, the child’s wishes, with more weight given to the wishes of a child at least 14 years old, and the child’s relationship with their parents, siblings, and any other person who might affect their best interests (I.C. 31-17-2-8). 

Legal custody is quite different from physical custody as it does not involve the child’s physical location, or where the child lives or spends most of his or her time, but allows the parent with legal custody to determine the child’s upbringing (I.C. 31-17-2-17). This includes making decisions about healthcare, education, and religious training for the child. During a divorce, parents may agree to, or the court may order, joint legal custody to both parents or sole legal custody to either parent (I.C. 31-17-2-13). If the parents of a child were never married, and do not agree in a paternity affidavit to share legal custody, mother has sole legal custody unless and until the court orders otherwise (I.C. 16-37-2-2.1).  When parents cannot agree on who should have legal custody, the court will make the decision in accordance with the best interests of the child (I.C. 31-17-2-13). To determine a child’s best interests in regard to legal custody, the court will consider the fitness of each parent to serve as legal custodian of the child, whether the parties can communicate with one another in advancing the child's welfare, the wishes of the child, with more consideration given to a child's wishes who is at least 14 years old, the child’s relationship with both parents, whether the parties live in close proximity to each other and plan to continue to do so, and the physical and emotional environment of each parents home (I.C. 31-17-2-15). 

Because shared physical and joint legal custody require parents to communicate with one another about their child more frequently and effectively than other forms of custody, and to reach a mutually acceptable agreement far more often, these two types of custody arrangement may not be right for all parents or for all children. When the parties views on parenting issues are vastly different, there is too much animosity between them to work together, or one parent was previously responsible for most of the childcare tasks and wishes to continue in this role, sole, or primary custody, may not be in the child or the parents’ best interests. 

If you are separating from or divorcing your child’s other parent, the experienced attorneys at Ciyou & Associates, P.C. can help you determine what custody arrangement is best for you and your family and ensure that both yours and your child’s rights are protected during the divorce and/or custody proceedings. 

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.


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