When a custody order no longer works for the family, a custody modification may be needed. There is no specific amount of time that a parent must wait to modify a custody agreement. However, in order to ensure that a child has a stable and predictable home life, Indiana courts do not allow custody modifications unless the requesting parent can meet some stringent guidelines. This blog discusses when you can modify a custody agreement in Indiana.
A change in a family’s basic circumstances can lead a parent to consider a modification of custody. Modification of custody agreements is controlled by the modification of child custody statute (I.C. 31-17-2-21) which provides that a court cannot modify a custody order unless (1) modification would be in the best interests of the child and (2) there has been a substantial change to one or more of the factors that the court must consider when making an original custody order. The factors contained in the custody order statute (I.C. 31-17-2-8) include “(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. (8) Evidence that the child has been cared for by a de facto custodian… (9) A designation in a power of attorney of: (A) the child's parent; or (B) a person found to be a de facto custodian of the child.”
The factors listed in the statute are not weighted and it is within the judges discretion to decide how to rank each factor to which a change has been made (Strawbridge v. Strawbridge, No. 22A-DR-3014 (Ind. App. July 10, 2023)). A change in circumstances is judged as a whole and it is the effect on the child that makes the change either substantial or inconsequential (Jarrell v. Jarrell, 5 N.E.3d 1186 (Ind. App. 2014)). The party requesting the modification bears the burden of proving that there has been substantial change (Whorley v. Whorley, No. 21A-DR-2670 (Ind. App. July 19, 2022)). If the court finds that a substantial change has occurred in one or more of the factors, or any other factor it considers relevant, it will then consider if a custody modification is in the child’s best interest.
A parties custody agreement may also be modified if one of the parents intends to move more than 20 miles away from the other parent’s residence, forcing the child to change schools. In this case, the moving parent must file a notice of intent to relocate to which the non-moving parent may object. If the non-moving parent objects to the relocation, a hearing will be set so that the court can decide if the move should be allowed and if a modification of custody and parenting time is appropriate (I.C. 31-17-2.2-1). When determining whether to modify a custody or parenting time order, the court must consider the following factors: 1) The distance involved in the change of residence. (2) The hardship and expense for the non-moving parent to exercise parenting time. (3) Whether the relationship between the child and non-moving parent can be preserved. (4) If there is pattern of conduct by the relocating parent, to either promote or thwart a relationship between the child and the non-moving parent. (5) The reasons provided by the: (A) relocating parent for the relocation; and (B) non-moving parent for objecting to the relocation. (6) Any other factors affecting the best interest of the child (I.C. 31-17-2.2-1).
Temporary modification of a custody agreement may also be granted in emergency situations such as a custodial parent being arrested and held either without bond or because he or she is unable to post bond, a situation where the child’s health may be in immediate danger if custody is not modified, or discovery of abuse by the custodial parent or a member of his or her household. These orders are temporary and may be issued with or without hearing until such time that a full custody modification hearing can be held.
If you are considering modifying a custody agreement or your child’s other parent has requested a modification that you oppose, the experienced attorneys at Ciyou & Associates can help protect yours and your child’s rights. 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.