As an outsider to the legal world, child custody may seem obvious—it is which parent gets the child during the pendency of the divorce and permanently when the divorce is final. While this is generally true, the types of child custody are much more expansive. If you are going to divorce, it is imperative that you have a handle on the types of child custody that exist under the Divorce Act, which in general terms are physical and legal custody. Most soon-to-divorce parents do not know much about legal custody unless they know from a prior divorce or that of a friend. This blog addresses the types of child custody set forth in the Divorce Act and what you should know about physical and legal custody.
The most known or common type of child custody is physical custody. The statutory presumption is for the court to award primary physical custody to one parent, with the other parent receiving Indiana Parenting Time Guideline time as a minimum. The parent with primary physical custody will have the child for more overnights during the year than the non-custodial parent. The other parent will, again, receive Indiana Parenting Time Guideline time at a minimum and he or she will pay child support. This noted, despite it not being the statutory presumption, there is a judicial trend toward more parenting time under Indiana Parenting Time Guideline time to be ordered for non-custodial parents or joint physical custody (although this is not the current law). The court can order any custody arrangement that the evidence supports is in the children’s best interests.
This noted, where many litigants lose an otherwise winnable case is by failure to properly prepare the case evidence. To prevail and obtain the custody result you desire, you must take the time to fully develop your position and show the court the evidence why what you want is in the children’s best interests. This evidence may range from school records to third party witnesses you call in the case. The reason so many cases fail to present this evidence is it is stressful for the litigant to develop and provide to his or her counsel. Additionally, it is sometimes expensive to get evidence into an admissible format and/or determine and/or lay the necessary evidentiary foundation trial. For instance, a school attendance record is not merely admissible because a parent has a copy of it. It must be certified, and a correct evidentiary foundation laid for same at trial (sometimes called hearing). This is time consuming for counsel, and correspondingly, makes the case more expensive. However, there are no do-overs and presenting your best case at trial is of the utmost importance. As a rule of thumb, it takes skilled legal counsel two (2) to three (3) days to prepare for each day of trial.
Legal custody, on the other hand, has nothing to do with where the children will sleep at night. Legal custody addresses who will make the Unlike the statutes addressing physical custody, there is a statute the may be viewed as encouraging courts to award joint legal custody. However, there is no such companion statute in the physical custody statutes. Moreover, it is important to note the statutes addressing legal custody make clear that an award of joint legal custody does not require joint physical custody. As with physical custody, the court will award legal custody in the children’s best interests and it has a comprehensive statutory scheme of factors to weigh under the Divorce Act in determining how to award joint legal custody.
With legal custody, it may be joint, sole or the court may split up legal custody so that, for instance, one parent has sole educational decision-making authority, with the parents sharing medical and religious decision-making. The key to any legal custody award is it must be in the children’s best interests. This, as with physical custody, takes time for the litigant to determine the evidence and for the attorney to get into an admissible format. Despite the merits of your case, if you do not show that sole or joint legal custody is in the children’s best interests, even if it is, your case will be lost. Remember the trial court can only rely on evidence presented in open court—even if it suspects other evidence would result in a different outcome.
This blog was written by attorneys at Ciyou & Associates, P.C. who handle domestic cases of all types across the State of Indiana. This blog was written as general educational background. It is not intended to be relied upon for any given legal matter or issue. This blog is not legal advice. It is an advertisement.