FAQ about Child Custody & Child Support

 

 

 

 

 

 

 

 

 

 

When parents of minor children decide to no longer live together, regardless of the parents’ legal relationship with one another, difficult decisions have to be made by the adults in regards to the children’s current/future well-being and best interests.  Admittedly, with all the emotional disruption and uncertainty about the future, this time can be very traumatic for not only the parents but also for the children These decisions can be extremely difficult considering the long-term and, quite often, unforeseen outcomes that can result.

​

In the state of Indiana, parents of minor children have several options when it comes to designing a workable parenting plan to give the children the best chance of successfully transitioning to a new reality as a result of the changes in their lives they are experiencing through no fault of their own. Keep in mind that even though the adults are altering their current relationship, they will still have to function in some sort of a workable partnership as parents raising their children to be strong and personally-responsible members of society.

 

What is a parenting plan, and do I need one?

A parenting plan refers to an agreement addressing all the details surrounding parenting time divorcing or divorced parents have with their children. If the parties are agreeable, it is highly encouraged they use domestic mediation to come up with a parenting plan that suits their schedules and allows their children to foster a healthy relationship with both parents. If the parents are unable to agree on a parenting plan, the court will make a determination regarding custody and parenting time based on the Indiana Parenting Time Guidelines as a part of the final Decree of Dissolution governing the time of each party.  For addition information on Parenting Plans, click here.

​

How is child custody determined in Indiana?

If parents decide to use domestic mediation for creating a parenting plan (child custody/parenting time) then they are the ones who determine the specifics of the parenting plan agreement.  However, if the parents are unable to come to an agreement on a parenting plan, then they must litigate the issues in the courts.  In the state of Indiana, the court has a very specific set of guidelines that it will follow regarding parenting time.

 

Regardless of whether the parenting plan/child custody is determined through mediation or litigation, the court will make its final decision based on what it determines to be in the best interest of the child(dren). That decision will be a result of the court’s analysis of a series of factors set forth by statute, the wishes of the parents and older children (if applicable), the interaction and interrelationship of the child(dren) with the child(ren)'s parents, siblings, extended family, etc., the child(ren)'s adjustment to the child(ren)’s home, school, and community along with the mental and physical health of all parties. 

 

What are the most common types of child custody in Indiana?

There are several different types of custody available in the state of Indiana. The parents are allowed to agree upon the type of custody each parent gets, but if they do not, the court will decide it for them. The court will make a decision that, hopefully, is based upon what is in the best interest of the minor children. Knowing the types of custody will make it easier for parents to settle their case.  The types of custody overlap, so it’s important for parents to understand each of them.

Physical Custody—

If the children live with a particular parent, that parent is said to have physical custody. A physical custody agreement/court order will include:

• Who the children live with

• Who takes care of the children on a day-to-day basis, and

• Who makes sure the children go to school, medical appointments and extra-curricular activities

 

During domestic mediation, parents can craft a physical custody agreement that is customized to their specific needs and the needs of their children. The agreement arrived at in domestic mediation can also include longer-term visitation schedules with extended family (ex. Traveling with grandparents on spring break or during the summer). In litigation, that option may not be available since the parents are not in agreement on the issues.

​​

 

Legal Custody—

Legal custody means decision-making. If a parent has legal custody, the parent has the right to participate in the major decisions concerning the children. Major decisions include but are not limited to issues regarding health, education, travel and religion.  It is possible for a parent to have both physical and legal custody, but it is also possible for a parent to have legal custody without physical custody.  Of course, If parents are able to craft a child custody agreement during domestic mediation they can resolve many of the most likely sources of future disagreements before they occur.

​

Joint Custody—

Many parents who reach a child custody agreement through domestic mediation choose joint custody.  These parents understand the importance of both parents being involved on a regular basis as much as possible in the raising of their children.  Joint custody is where both parents actually have joint legal custody of the children. This means they each have the right to have an input in decision-making concerning the children. This type of arrangement works best for parents who can be amicable with each other and who are willing to work together for the sake of the children.

​

Joint custody works best when parents live near each other so that the children can continue to maintain as much routine in their lives as possible. The importance for the well being of children attending their same schools and associating with their friends regardless of which parent they are staying with cannot be overstated. That’s not to say it can’t be done in long-distance scenarios, but joint custody has more of a chance to succeed when the parents can each interact with the children on a regular basis. It’s difficult to make serious decisions long-distance.

 

Joint Physical Custody—

Joint physical custody is also referred to as shared custody. This works best for young children. In this type of situation, each parent has relatively equal time with the children. That could mean a schedule where the children stay with one parent for the first week and then stay with the other parent for the second week. The parents continuously alternate physical custody each week. This usually does not work well for school-aged children because it is disruptive to their schedules without both parents.

​

Other types of shared custody could include splitting up the week, with one parent having the children for three-and-a-half days at the beginning of the week and the other parent having the children towards the end of the week. This type of custody also works best for young children. In shared custody situations, older children have a tough time remembering which parent’s house to go to after school or which parent is supposed to take them to or pick them up from activities. 

​

Sole Custody—

Sole custody is awarded by the court or agreed-upon when one parent is the primary caretaker of the child. That parent will have the right to make the decisions concerning the children. Sole custody works in the best interests of the children when the non-custodial parent has:

​

• Engaged in domestic violence against the other parent

• Engaged in abuse or neglect against any of the children

• A substance abuse or alcohol problem

• A problem with the law, such as arrests, convictions or jail time

• Not been involved in the children’s lives, or

• Other factors which make sole custody the best choice for the children

 

Both sole custody and joint custody can be awarded by a court or decided by agreement during domestic mediation. Sole custody means sole physical custody, with the other parent usually having some form of visitation. It’s not necessary to call this type of custody sole physical custody because physical custody is presumed.

​

Can visitations be denied if child support is not current?

No. Child support and visitation rights are not dependent on one another. Child support cannot be withheld if child visitations are not being allowed by the custodial parent and child visitations cannot be denied if child support is in arrears.  However, if either parent is not in compliance with the court order, regardless if the decision was arrived at through mediation or through litigation, the parent(s) not compliant with the court order may likely be held in contempt of court.  A contempt of court conviction can result in very serious penalties up to and including imprisonment.

​

How is child support calculated?

The state of Indiana uses a Child Support Calculator to determine what amount of child support should be paid by the non-custodial parent to the primary custodial parent.  The calculations are quite detailed, taking into account the incomes of both parents, the specific costs for maintaining a lifestyle for the child(ren) at least equal to the standard of living as when the parents were living together.  It is generally an accepted principle that the cost of a raising a child(ren) is to be equally shared by both parents after they no longer live together.

​

Costs for shelter, food, clothing, medical/dental expenses, extra-curricular activities, daycare and educational expenses (Pre-K through 12 and post-secondary) are only part of the calculations used to arrive at a reasonable and fair amount of child support.  Parents can agree to more or less child support if there are some unique considerations but, normally, the Child Support Calculator amount is what the courts approve in most cases. All motions/agreements are required to submit a copy of the Child Support Calculator results when filed with the courts.

​

Who will get custody of our child(ren)?

In Indiana, who receives custody of the children is based on the best interests of the child. If the parents use domestic mediation to agree on child custody (a parenting plan) then they determine the specifics of the custody agreement.  However, if the parents are unable to reach an agreement during the mediation process, then they will have to litigate the issue of child custody in the courts.  The decision made by the court will be based on an analysis of a series of factors set forth by state statute. With domestic mediation, the best interest of the children is still the primary determining factor but more options are generally available to families than there are in litigation.

​

If both parents share custody does anyone pay child support?

Whether a party pays child support will be based on the result of a formula created by the state of Indiana that considers each party’s gross weekly income, the cost of the child’s daycare, if necessary, and who pays for it, health care costs, and the amount of parenting time the non-custodial parent exercises. If both parents share custody and their incomes are sufficiently similar, they may be able to avoid a separate child support obligation. Alternatively, the parties can agree to forego a child support order and instead provide for the expenses associated with the child’s care while exercising their own parenting time.

​

If I have custody, will I receive child support?

If the child support formula used by the State of Indiana produces a child support obligation for the non-custodial parent, the non-custodial parent will be ordered by the courts to pay child support.

 

Source:  https://cordellcordell.com/resources/indiana/indiana-child-custody/

​

When can my child decide which parent to live with?

Until your child reaches the age of 18, the court will make a determination as to custody. However, at age 14, consideration is given to the child’s wishes by the court when making this determination.  Domestic mediation agreements can also take into consideration the wishes of the child(ren) if that is acceptable to both of the parents.  

 

Do grandparents have custody and visitation rights?

In Indiana, grandparents may pursue visitation with their grandchildren through the court. Whether a grandparent is given visitation rights is based on the best interests of the child. A grandparent may do so if the child’s mother or father is deceased, if the child’s parents were divorced in Indiana, or if the child was born out of wedlock. A grandparent’s visitation rights survive the adoption of a child by a stepparent or by the child’s grandparent, sibling, aunt, uncle, niece, or nephew.

​

If my separation agreement includes custody/support can it be included in the divorce decree?

If the court approves the content of the custody and support portion of the agreement, it can be included in the Divorce Decree. Since the best interests of the child must always be determined by the court, this portion of the agreement will not be included automatically.

 

What can I expect from temporary orders?

Divorcing couples often tackle custody and visitation issues as soon as they separate. Courts generally honor both long-term and short-term custody arrangements mediated and agreed to by parents. When parties cannot agree, a temporary order governing the provisional period may be issued by the court.  This order may be determined by a preliminary hearing during which evidence regarding custody and parenting time is presented. After the hearing, the court issues an order deciding custody that will be in effect until the court enters its final divorce decree.

 

 

When will child custody be decided?

Temporary custody may be decided as soon as separation begins. Permanent custody arrangements will be included in the court’s final Decree of Dissolution.  The soonest that the final Decree of Dissolution can be issued is sixty days after the date that the Petition for Dissolution of Marriage was filed with the court.

 

Can the parenting plan/custody be altered?

Once the issues of custody and visitation have been resolved by a mediated agreement or by the court in litigation, specific procedures must be followed to change the arrangement.  In order to support a request for a change to a custody or visitation arrangement, the parent seeking the modification must show a substantial change in circumstances. Courts will almost always consider a request for modification if there is a showing that the child is endangered by the current custody arrangement. If a custody modification is contested, then the parent seeking the change should be prepared for what will likely be a contentious, time-consuming and costly litigation.

 

What if we cannot agree on a custody arrangement?

If the parties cannot agree to a custody arrangement during mediation, they they will need to revert to litigation. The court will determine what arrangement is in the best interests of the child and include the plan in the final Decree of Dissolution.

 

What is an ex parte order?

An ex parte order is an order requested by a party and issued by a court without notice to the other party.

 

How can I increase my chances at getting a larger custody agreement?

You should consider your involvement in your child’s life and work to actively maintain and develop this relationship. Spend as much time with your child as possible so your role in their life is clearly visible to the court.

 

What is visitation?

Visitation or parenting time is the actual time divorcing parents spend with their child.

 

Can a judge order supervised visitation or no visitation?

A judge may order supervised visitation if some risk to the child exists if unsupervised visitation is granted. Similarly, if the court determines it is not in the best interests of the child for a parent to exercise parenting time, the court may order no visitation.

 

Do courts favor the mother over the father?

In Indiana, there is no presumption favoring either party just by virtue of their gender. The court’s duty is to consider the best interest of the child in making a custody determination.

 

What should I know before a custody trial?

If you and your partner are unable to reach an agreement regarding child custody, you should know the court may make inquiries into your role in your child’s life, your health and stability, and your contribution to your child’s upbringing. If custody is contested, be prepared for what is considered the most contentious issue in family law. You must be able to prove to the court that your child is better off with you. Thus, you should bear this in mind at all times. 

 

This is why parents should consider domestic mediation as their first option and use litigation only as a last resort in resolving domestic disputes surrounding divorce and child custody/support.

 

Can I collect my own evidence to use if my custody case goes to court?

If parents opt to use the domestic mediation process as a first option, they will already have collected the information and pieces of evidence they use to develop a plan for all the related aspects for divorce and chid custody/support.  If, in that rare occasion, the domestic mediation process is unsuccessful, the parents will have what they need to begin the litigation process.

 

Do I need to use a Guardian ad Litem/CASA/Custody Evaluator?

Depending the Indiana county in which you live/file, and if you decide to use litigation to have the court resolve your domestic dispute, a Guardian ad Litem/CASA may be recommended in order to help the court learn more information about each parent and their relationship with the child. Often the court or your attorney may recommend or require the appointment of a custody evaluator or Guardian ad Litem/CASA in order to assist in the determination of custody in your case.

 

Will my child need to appear in court?

Depending on the age of your child, the court will likely try to determine a custody arrangement without requiring your child’s appearance in court.  If your child is a bit older and his/her wishes may be considered by the court (i.e. at least 14 years old), your child’s appearance in court may be necessary.  Although, it is not unusual for judges to adjourn court and meet with older children in chambers in order to get a better understanding of their wishes without the presence of parents and the pressure of a courtroom weighing on them.

 

What is the Parental Kidnapping Prevention Act?

The Parental Kidnapping Prevention Act (PKPA) allows any state to honor and enforce a custody order issued by another state’s court in order to prevent parental kidnapping. The (PKPA) prohibits a second state from exercising jurisdiction when another court is already exercising jurisdiction in a child custody matter. This prevents a parent from seeking the intervention of a new court into a custody matter that has already been determined by a court in the child’s home state.

.

What if my husband/wife tries to move our child(ren) out state?

Indiana law requires that individuals subject to a parenting time or visitation order must file and serve upon the other party a notice of intent to relocate whenever he/she relocates his/her residence. There is no distance restriction for this requirement.The notice of relocation must be filed and served upon the opposing party no less than ninety (90) days before the parent intends to relocate, and the notice must contain the information pertinent to the new location. The non-relocating party may then file a motion with the court objecting to the relocation of the child. If such an objection is filed with the court, the relocation is contested and must be scheduled for hearing.

 

Can a parent change the child’s last name without the other parent’s permission?

No. A parent may not change a minor child’s last name without the other parent’s permission unless his/her right to consent has been removed by law (Termination of Parental Rights). In the absence of these circumstances, the parent wishing to change the child’s name must petition the court and obtain consent from the other parent.

​

​