Indiana: Understanding Child Custody

The term “child custody,” in family law, is not defined by the Indiana Code directly, though “Custodian,” has been defined under juvenile law to mean, “a person with whom a child resides.” However, this begs the question, how long must the child reside in a home before a person is considered a custodian.

Parents have a right to supervise, care for, and educate their child, the child has a right to receive support and maintenance from his/her parents, and both have rights to inherit from one another and to recover for injury tortiously inflicted on the other.” Under Indiana Code, “the custodial parent may determine the child's upbringing, which includes education, health care, and religious training….” IC 31-14-13-4 (out-of-wedlock children); IC 31-17-2-17 (children born of a marriage).

However, the right to “determine the child's upbringing” is not absolute, because a court may still order the parent with decision-making authority to “consult” with the other parent and allow access to information regarding the decisions. Therefore, there are not merely two rights (“physical” and “legal” custody), but many.

While the Court may specifically provide that parents jointly share the rights encompassed by the term “legal custody,” there is no such provision for “physical custody.” Thus, joint legal custody does not necessarily require joint, shared, or equal physical custody. Under IC 31-9-2-67, “joint legal custody” is defined as shared “authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care, and religious training.”

Joint legal custody is dependent upon the best interests of the child. The Indiana Code provides one primary factor the court must consider in whether to award joint legal custody-- Namely, whether the parents "have agreed to an award of joint legal custody." IC 31-14-13-2.3(c) (paternity cases); IC 31-17-2-15 (dissolution cases). Additionally, the Indiana Code provides a list of several additional factors for consideration:

(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;
(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.

Additionally, IC 31-14-13-2.3(c)(7) provides that the court should also consider "whether there is a pattern of domestic or family violence" in determining whether joint legal custody is in the best interest of the minor child in a paternity case. While this factor is not specifically enumerated in Indiana's dissolution statutes, it does not mean that a dissolution court may not consider domestic violence, as that factor has obvious applicability to the child's best interests. Rather, it should be considered under factor IC 31-17-2-15(6) in assessing how the presence of domestic violence affects "the nature of the physical and emotional environment in the home of each of the persons awarded joint custody."