Obtaining a modification of a child custody order in Indiana can be more difficult than gaining custody in an original order. Parents attempting to modify custody should know what factors the court will consider in a modification and what evidence might be inadmissible at hearing. This blog discusses the process of changing child custody in Indiana and what parents involved in a custody modification should know.
Child custody in Indiana is determined based on the best interests of the child. In an original custody determination there is no presumption in favor of either parent, and the court considers some of the following factors1: “(1) The age and sex of the child. (2) The wishes of the child's parent or parents. (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) The interaction and interrelationship of the child with: (A) the child's parent or parents; (B) the child's sibling; and (C) any other person who may significantly affect the child's best interests. (5) The child's adjustment to the child's: (A) home; (B) school; and (C) community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent….”
After the initial custody determination, there is a presumption in favor of maintaining the status quo because generally “permanence and stability are considered best for the welfare and happiness of the child.”2. Modification of a custody order requires then that there be a substantial change in one of the above factors3. Because a substantial change in one or more of the factors considered by the court as being in the best interests of the child is required, the burden is on the parent seeking the change of custody, to prove that there has been a change which makes it no longer in the child’s best interests to maintain the current custody order4.
An improvement in the non-custodial parent’s home that does not affect the health or welfare of the children is generally not considered a substantial change of circumstances warranting a custody modification. Changes in the custodial parent’s household, such as remarriage, physical or mental illness, drug addiction, or arrest may justify a change of custody. Gradual changes that naturally occur, such as the age of the child and his or her relationship with siblings and parents may also warrant a custody modification. However, while you may know that your child will be happier and healthier in your care, you must prove this in court by submitting admissible evidence.
The first rule of admissibility in a custody modification proceeding is that the court will not hear evidence regarding matters occurring before the last custody proceeding5. Allowing this could lead to parents relitigating the same issues over and over. The next rule governing evidence is the test for relevant evidence6 which provides that “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” For example, if your spouse committed adultery, but your children did not witness any inappropriate incidents of the adultery, the infidelity will have no bearing on the outcome of a child custody case, and therefore evidence of such is not admissible in court. The rules of evidence and trial procedure govern what can be admitted and what cannot. Your attorney can advise you on the evidence that will best help to prove your case and any rules that must be followed to get it admitted.
The process of changing child custody in Indiana can be complex and if you are involved in a modification case, you should consider taking advantage of the expertise of a good family law attorney, such as those at Ciyou and Associates, P.C.. 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.
