What Is the Statutory Presumption for Legal Custody in Indiana?

Legal custody grants a parent the right to make major decisions concerning the child’s upbringing, such as religious training, education, and healthcare. When making a legal custody determination, the court must consider all relevant statutes and the factors described in those statutes. This blog explores legal custody determinations and the statutory presumptions for legal custody in Indiana.  

The main statute governing legal custody concerns the authority of the custodial parent to determine the child’s upbringing. The statute provides that unless an order of the court provides otherwise, the parent who has physical custody of a child, also has legal custody. When making a physical custody determination, the court makes no presumption in favor of either parent, and is only concerned with the best interests of the child. Factors the court considers when determining the best interests of the child include the age and sex of the child, the relationship of the child with his or her parents and siblings, the parent’s wishes, as well as the child’s, the child’s adjustment to his or her home, school, and community, and the mental and physical health of the parents and the child. Any other relevant factor will also be considered. 

For many years the traditional custody arrangement was one parent having custody of the child and the other parent being granted parenting time. Custody included both physical and legal custody. Courts now sometimes deviate from this traditional arrangement by awarding the non-custodial parent an equal amount of parenting time as the custodial parent as well by granting parents joint legal custody. Joint legal custody is governed by two different statutes, the first, setting out the finding required for an award of joint legal custody. This statute provides that before ordering joint legal custody, the court must find that it would be in the best interests of the child. 

To determine if a joint legal custody arrangement would be in the child’s best interests, the court will first consider, as primary importance, whether the parties agree to joint legal custody. The court will also 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 awarded joint custody…”. An award of joint legal custody does not require that the parties share equal amounts of parenting time.

Legal custody orders may be modified, just as physical custody orders may, first upon a showing that there has been a substantial and continuing change in circumstances which make the prior order unreasonable. This change must be in one or more of the factors listed in Indiana Code § 31-17-2-15 (when the parties currently share joint legal custody or joint legal custody is being sought) or in Indiana Code § 31-17-2-8 (when the parties do not currently have joint legal custody and the party seeking the modification is not asking for it). Once this change in circumstances has been proven, the court will then decide if the change is in the child’s best interests. 

When determining the best interests of a child for either legal or physical custody orders, the court considers the factors listed in Indiana’s custody order statute. These factors include, but are not limited to, the age and sex of the child, the child’s relationship with his or her parents and siblings, the parent’s and the child’s wishes, the child’s adjustment to home, school, and community, and the mental and physical health of the parents and the child. If modifying legal custody to or from joint legal custody, the court will also consider other statutory factors for making a joint legal custody award.

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.


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