Domestic violence in a home can result in an offending parent losing custody and parenting time rights with the child, both parents becoming involved with child protective services, the child being removed from the home to live with a third party, or even termination of the parental rights of one or both parents. The impact of domestic violence on a family varies, as does the frequency and seriousness of the violence being committed. This blog explores the effects of domestic violence on child custody in Indiana.
Child custody awards in divorce and juvenile paternity cases are granted in accordance with the best interests of the child. In order to determine what the best interests of the child are, the court considers any factor relevant to the child’s health and well-being, as well as those factors listed in Indiana’s custody order statute, for divorces (I.C. 31-17-2-8) and custody order determination statute, for paternity cases (31-14-13-2). The factors listed in the two statutes are identical and include, but are not limited to, the child’s wishes, with more weight given to those wishes if the child is at least 14 years old, the child’s adjustment to their home and school, the physical and mental health of all parties, and evidence of a pattern of domestic violence. Because each situation and child is unique, custody cases involving domestic violence can have very different outcomes when considering these factors. For example, an older child who witnesses his father shove his mother but is well adjusted and wants to remain living with his father may likely be allowed to do so. However, a grade school aged child who frequently witnesses her mother punching her father, is doing poorly in school, and regularly misbehaves both at home and school, but wishes to live with her mother will in all likelihood be placed in the primary care of her father by the family court.
Couples who are not divorcing or splitting up can still encounter child custody issues due to domestic violence if Child Protective Services (“CPS”) becomes involved. The involvement of CPS generally occurs in domestic violence situations when the abuse results in criminal charges being filed or the child is a witness to or victim of the abuse and shares that information with a teacher, school counselor, or other trusted adult who files a report with CPS. Reports of suspected child neglect or abuse can be made by telephone 24 hours a day seven days a week (I.C. 31-33-7-1). Once a report is made, CPS must begin an investigation within two hours if it believes the child is in immediate danger of serious bodily injury, 24 hours if the child may be a victim of abuse, and five days for reports of neglect (I.C. 31-33-8-1). Assessments must include, if reasonably possible, the nature and extent of the alleged abuse or neglect, the name of the person allegedly responsible for the abuse or neglect, the names and conditions of other children in the home, an assessment of the parents or other person responsible for caring for the child, and any information about the home environment and relationship of the child to the person responsible for his or her care. Case managers may also include in their assessment information concerning a home visit and interview with the child, as well as a medical or psychiatric examination of any child living in the home, if able to obtain parental consent for each (I.C. 31-33-8-7).
Once the required assessment and report have been prepared, CPS may request an order of removal for the children from the court (I.C. 31-33-8-8). If, before an assessment can be completed, either law enforcement or CPS has probable cause to believe that the child is a child in need of services, the child may be taken into immediate custody, without court order, if: (1) it appears that the child's physical or mental condition will be seriously impaired or endangered should the child not be immediately taken into custody; (2) there is not a reasonable opportunity to obtain an order of the court; and (3) consideration for the safety of the child precludes the immediate use of family services to prevent removal of the child (I.C. 31-34-2-3). A child removed from his or her home without court order may be returned to the home if the intake officer does not reasonably believe that the child is a child in need of services and the child’s parent signs an agreement to bring the child to the scheduled court hearing (I.C. 31-34-4-5). When a child is removed pursuant to a court order, CPS will look for a suitable and willing relative or de facto custodian with whom to place the child before considering placement in a foster home or facility (I.C. 31-34-4-2).
A child taken into custody may not be held for more than 48 hours, excluding weekends and court holidays, before a detention hearing must be held to determine if further detention is necessary to protect the child (I.C. 31-34-5-1). Not more than 60 days after the request for removal of the child alleging him or her to be a child in need of services is filed with the court, a fact finding hearing must be held where both parents may present evidence and make legal arguments to support their beliefs concerning the child’s removal and how the case should proceed (I.C. 31-34-11-1). After this hearing, the court may order the return of the child to the home, continuation of the current placement, or placement with another party. If the child is not released back to the home, case plans may be created, various services offered to the child and his or her parent or parents, follow-up visits scheduled with CPS, and review hearings set by the court. During the time between the detention and fact finding hearings, one of both parents may be able to exercise parenting time with the child, either supervised or unsupervised, dependent upon the court’s orders from those hearings. If the child remains under the supervision of CPS for 15 months of the most recent 22 months, CPS will file a petition to terminate parental rights (I.C. 31-34-21-0.2).
Whether child custody is an issue in your divorce or paternity case, or CPS has removed your child due to domestic violence, you should consult with an experienced family law attorney who can help you protect your rights and your children. 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.