Will I Get Custody of the Children if I Am Their Biological Mother?

It is a common misconception that the mother always gets physical custody of the children in a divorce.  While the courts did follow the tender years’ presumption for a number of years where small children were thought to need to be in their mother’s care, this is not the case at present.  According to the US Census Bureau, the percentage of fathers being awarded custody is increasing.  The current custody standard does not favor either parent.  This blog discusses child custody awards, Indiana’s statutory presumption when determining custody, and what factors the court considers when making a custody award. 

Child custody is governed by Indiana Code § 31-17. The code provides that custody orders should be made based on the best interests of the child and that there is no presumption in favor of either parent. It goes on to list the relevant factors the court must consider when determining the best interests of the child. These factors 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, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter”

If your husband is not the children’s biological father and has not adopted the children, he may gain custody if he is found to be a de facto custodian. A de facto custodian is a person who has been the primary caregiver for and financially supported a child who has lived with the person for at least 6 months if the child is less than three(3) or one (1) year if the child is at least  three (3) years old. If it finds your husband to be a de facto custodian it must consider: “(1) The wishes of the child's de facto custodian. (2) The extent to which the child has been cared for, nurtured, and supported by the de facto custodian. (3) The intent of the child's parent in placing the child with the de facto custodian. (4) The circumstances under which the child was allowed to remain in the custody of the de facto custodian, including whether the child was placed with the de facto custodian to allow the parent now seeking custody to: (A) seek employment; (B) work; or (C) attend school”.

Stepparents not found to be a de facto custodian, may however, be granted visitation rights in a divorce. Divorces involving custody issues can be complex and can result in custody in fathers and third parties. The attorneys at Ciyou & Associates, P.C. can help fight for you if your custody objective if your divorce involves contested custody.

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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