Indiana law provides for both temporary and permanent custody in divorces and paternity actions. The duration and effect of a temporary order depends on the type of temporary order issued and the language of the order. This blog discusses key aspects of temporary vs. permanent child custody in Indiana and when and how those custody arrangements might be determined by the court.
The most common temporary child custody order is one granted to a parent during the pendency of a divorce (I.C. 31-15-4-1(2)). This type of custody order is often referred to as a provisional custody order and grants custody to a parent only until the final hearing or until the divorce is dismissed (I.C. 31-15-4-14). The provision for temporary custody is provided for divorcing parents who cannot agree on who shall act as primary custodian for the child until they can have a full custody hearing and the divorce can be finalized. This may be necessary even when the parties agree on all other issues, as Indiana enforces a strict 60 day waiting period before a final hearing can be held on a petition for divorce (I.C. 31-15-2-10) and someone must act as the child’s primary custodian during the waiting period. A provisional custody order does not create a presumption in favor of either parent at a final hearing (I.C. 31-15-4-13).
Whether asking for a provisional or permanent custody order in a divorce, the court will consider the best interests of the child. In doing so, it must take into account all of the factors listed in Indiana’s custody order statute (I.C. 31-17-2-8). The statute governing custody orders in paternity cases (31-14-13-2) mirrors that of the divorce custody order statute in its listing of the factors to be considered when determining the best interests of the child. However, provisional orders are not issued in paternity cases as they are in divorces since there is no waiting period between establishment of paternity and the ability to set a custody hearing. A finding of paternity may be made without hearing if mother and father both execute a paternity affidavit (I.C. 31-14-8-1(1)), which results in an order of paternity requiring father to pay child support. In this case, mother will have primary physical custody of the child (I.C. 16-37-2-2.1(h)(4) unless and until a court orders otherwise. A custody hearing must then be requested by father, if he wishes to establish a custody and parenting order. When mother and father do not execute a paternity affidavit, either party may file a petition to establish paternity, custody, parenting time, and support, upon which a hearing will be held so that the court can make the appropriate determinations and orders (I.C. 31-14-4-1).
Temporary child custody orders in divorce and paternity cases, after an initial permanent order has been made, are fairly uncommon. This type of temporary order may be issued when the non-custodial parent files a petition for emergency custody modification alleging that an emergency exists that will cause immediate and irreparable harm to the child if custody is not immediately modified. While there is no statute governing this type of temporary custody, if from the petition, it appears as if an emergency may exist, the court will schedule a short hearing within a few days so it can determine if an emergency does in fact exist. If it finds that one does, it will issue a temporary custody order until a full hearing can be held. A court could also find that an emergency exists based solely on the petition and modify custody without holding a hearing or allowing time for the other party to receive notice of the filing. When an order is issued without hearing or notice to one of the parties, it is called an ex-parte order and the court is required to set a hearing as soon as possible after its issuance to allow both parties the opportunity to be heard. Courts very rarely issue ex-parte orders with the exception of orders of protection.
When asking for an emergency custody modification, there must be a true emergency. Examples of true emergencies include the custodial parent being in jail or the hospital, a person in the custodial parent’s home physically or sexually abusing the child, or the custodial parent moving with the child to another state or country in two days, without prior notice to the non-custodial parent. Disputes over whether the child needs to see a doctor, the child’s school attendance, or the custodial parent moving in a new girlfriend or boyfriend do not rise to the level of an emergency. If you are a non-custodial parent with a custody emergency, the experienced attorneys and Ciyou & Associates, P.C. can help.
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.
