Blog

What Does It Mean When a Parent Has Sole Custody

What Does It Mean When a Parent Has Sole Custody in Indiana?

In general terms, when a person (who has been through a divorce or paternity case) says they have sole custody, they may mean they have sole physical custody of the children. What this means is that they have physical custody and the other parent gets Indiana Parenting Time Guideline time at a minimum. However, it could also mean they have sole legal custody. This blog analyzes the differences between physical custody and legal custody. A mere statement from a person that they have sole custody is incomplete.

Physical custody refers to the parent the child will spend the most nights with. They are often referred to as the sole custodian or sole physical custodian. To determine physical custody, and award a parent sole physical custody, a trial court hears evidence and makes a decision about which parent would be a better custodial parent. The trial court is guided in its decision by the statutory factors as set forth in the Divorce Act that dictates what the courts should consider in awarding physical custody.

Specifically, in making a decision about physical custody decision, “[t]he trial court shall determine custody in accordance with the best interest of the child. In determining the best interests of the child, there is no presumption favoring either parent. The Court shall consider all relevant factors, including the following: (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 siblings; 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; (8) evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter. (9) a designation in power of attorney of: (A) the child’s parent; or (b) a person found to be a de facto custodian of a child.”1 While this is the law, additional parenting time is a norm and the trend (not yet the law) is toward joint physical custody–and many courts are finding this is in the children’s best interests.

Legal custody, on the other hand, has nothing to do with where the child sleeps at night. Legal custody refers to who makes the decisions about the children’s health, education and religion. A parent may say that they have sole custody and be referring to legal custody as well. This distinction is key. Why? Pursuant to statute, an award of joint legal custody does not require an equal division of physical custody of the child. Thus, a statement that a parent has sole custody really does not inform anyone of anything since the parent may be referring to physical or legal custody. Unlike physical custody, there is a statute that effectively encourages judges to award joint legal custody: “The Court may award [legal] custody of a child if the court finds an award would be in the best interests of the child.”2 There is no such statute in the physical custody statutes the court is to consider. Joint legal custody is thus very common.

Nevertheless, as with physical custody, there is a statutory scheme the court considers in determining whether an award of joint physical custody is in the children’s best interests: “ . . .the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall consider(1) the fitness and suitability of each of the persons awarded joint custody; (2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare; (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) whether the child has established a close and beneficial relationship with both of the persons award joint custody; (5) whether the persons awarded joint custody: (A) live in close proximity to each other; and (B) plan to continue to do so; and (6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.”3

In conclusion, the statement that a parent has sole custody, standing alone, does not answer the question of what sole custody they exercise (e.g., physical or legal). That parent may have sole physical custody or joint legal custody or both. It is important to understand the key differences between physical and legal custody. This blog was written by attorneys at Ciyou & Associates who handle domestic cases throughout Indiana. This blog is written for general educational purposes. It is not intended to be relied upon for any legal matter or issue. This blog is not legal advice. It is an advertisement.


  1. Indiana Code section 31-17-2-8.
  2. Indiana Code section 31-17-2-13.
  3. Indiana Code section 31-17-2-15.
Facebook
Twitter
LinkedIn
Pinterest
Email

Quick Contact

Need to talk now? Fill out the quick form below and we will contact you directly.

What Our Clients Say About Us

Contact Us

Name(Required)