How will a judge make a decision about custody?
A judge will make a decision about custody based on what s/he thinks is in your child’s best interest. The judge will look at any factor that s/he thinks is important to make this decision.
According to Indiana law, when determining what is in the best interest of the child, the judge will look at:
- the age and sex of the child;
- the wishes of the child’s parents;
- the child’s preference for who s/he wants to live with, giving more consideration if the child is at least 14 years old;
- the relationship the child has with his/her parents, siblings, and any other person that might significantly affect the child’s best interests;
- the child’s adjustment to his/her home, school, and community;
- the mental and physical health of all individuals involved;
- evidence of a pattern of domestic violence by either parent;
- evidence that the child has been cared for by a “de facto custodian” (someone other than a parent who takes on a custodial parent’s role) and if the evidence is sufficient, the court shall consider the additional factors listed in What is a “de facto custodian” and can s/he get custody?; and
- if a parent (or a person found to be a de facto custodian of the child) created a power of attorney regarding the child, the judge will look at what terms are included in it.1
1 Ind. Code § 31-17-2-8
Can a parent who committed violence get custody or visitation?
A judge will consider any evidence of domestic or family violence by either parent, but it is possible that a parent who has committed violence will get custody or visitation.1
However, if the other parent was convicted of a crime involving domestic or family violence that was witnessed or heard by child, the judge must assume that it is in the child’s best interest to order that parent to only have supervised visitation. The supervised visits would last for one to two years following the crime involving domestic or family violence or until the child becomes emancipated - whichever occurs first. The parent, however, can try to show evidence to the judge to change the judge’s mind and ask that the visits not be supervised. As a condition of granting the noncustodial parent unsupervised parenting time, the judge may require the noncustodial parent to complete a certified batterer’s intervention program.2
It is recommended that you seek legal advice from a lawyer to assist you in a custody case involving domestic violence issues. For information on how to find a lawyer see our Indiana Finding a Lawyer page.
1 Ind. Code § 31-17-2-8(7)
2 Ind. Code § 31-17-2-8.3
What is a "de facto custodian" and can s/he get custody?
If someone who is not the child’s parent has been acting as the primary caregiver and primary financial supporter of the child for a certain period of time, the judge could decide that this person is a “de facto custodian” (but this would not apply if the person is providing care for the child in a foster family home). When determining the time period that the person would have to be performing the role as primary caregiver and financial supporter, the law only allows the time to be counted if it is before a custody case has been filed. The required time periods and are as follows:
- for a child who is under age three, the person would have to be caring for the child in this way for a period of six months or more;
- for a child who is age three or older, the person would have to be caring for the child in this way for a period of one year or more.1
If the judge believes that the non-parent is a “de facto custodian,” the judge will do the following:
- add the de facto custodian as a “party” to the custody case;
- consider the following additional factors when deciding who should get custody (along with the factors listed in How will a judge make a decision about custody?):
- the wishes of the child’s de facto custodian;
- how much the child has been cared for, nurtured, and supported by the de facto custodian;
- the reason why the child’s parent first placed the child with the de facto custodian;
- 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 look for a job, go to work, or attend school.2
The judge might even award custody to the de facto custodian instead of the parents if the judge believes that it is in the child’s best interests to do so.3
1 Ind. Code § 31-9-2-35.5
2 Ind. Code §§ 31-17-2-8(8); 31-17-2-8.5(b), (c)
3 Ind. Code § 31-17-2-8.5(d)
If my child was conceived from rape, can the offender's rights be terminated?
If your child was conceived as the result of rape, you can file a petition with the juvenile court or probate court to terminate the parent-child relationship between the child and the offender.1 However, if you were 18 or older when the rape occurred, you have to file the petition for termination within 180 days after the birth of the child. If you were under 18 when the rape occurred, you have to file the petition within two years after you turn 18 (so, before your 20th birthday).2 The judge can grant the petition terminating the offender’s rights if the judge believes that it is in the best interests of the child to do so.3
1 Ind. Code § 31-35-3.5-3
2 Ind. Code § 31-35-3.5-4
3 See Ind. Code §§ 31-35-3.5-5; 31-35-3.5-6
When can a judge order that a parent be drug tested?
A judge can require a parent to undergo drug testing as a condition to using his/her parenting time if either of the following are true:
- the parent has a history of unlawful drug use within the last five years; or
- there is a “reasonable likelihood” that the parent is currently using unlawful drugs.1
The parent who has to take the drug tests is also responsible for paying the costs of the drug testing.2
1 IC 31-17-2-21.8(a)
2 IC 31-17-2-21.8(c)
Should I start a court case to ask for supervised visits?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to Indiana Finding a Lawyer to seek out legal advice.