Indiana Custody

Custody

The custody process

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,” which is someone other than a parent who takes on a custodial parent’s role; if the evidence is sufficient, the judge will then 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.” (However, 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 20^th 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.

After a custody order is issued

Are parents required to tell each other their address and phone number?

Anyone who has, or is filing for, custody, parenting time, or grandparent visitation rights has to inform anyone else who has or is seeking those rights of their home address, phone numbers, and email addresses. This contact information must be provided in writing, including electronically, to each person who is entitled to the information. If any of the information changes over time, the updated information must be provided.¹ The only exception to this is if the judge rules that sharing this information creates a significant risk of substantial harm to the person required to give the information or to the child.²

¹ Ind. Code § 31-17-2.2-0.5
² Ind. Code § 31-17-2.2-4

What happens to a parent's visitation rights when s/he is deployed?

If a parent who is in the military gets deployed, s/he can ask the judge to temporarily give his/her parenting time to a person who has a close and substantial relationship with the child. The judge can order this if the judge believes it is in the best interests of the child. The temporary arrangement would end automatically when the parent returns from deployment.¹

¹ IC § 31-17-2-21.1(a), (b)

When can a custody order be changed (modified)?

The judge can modify a child custody order if:

there is a substantial change in one or more of the best factors explained in How will a judge make a decision about custody? and
the modification is in the best interests of the child.¹

If the case involves a de facto custodian, the substantial change in circumstances may involve any of the additional factors explained in What is a “de facto custodian” and can s/he get custody?²

¹ Ind. Code § 31-17-2-21(a)
² Ind. Code § 31-17-2-21(a)(2)

What steps do I have to take if I want to relocate?

If you plan to move out of your current home, you need to file a notice of intent to move with the clerk of court that issued the original order if either of the following are true:

the move will increase the distance to the other party’s home by more than 20 miles; or
the child has to attend a different school due to the move.¹

You have to file and serve the notice at least 30 days before the intended relocation or within 14 days after you become aware that you have to relocate, whichever is sooner. The notice must include all of the following unless the judge rules including this information would put you or your child at significant risk of substantial harm:

the address of the intended new residence;
your telephone number(s);
the date of the intended move;
a brief statement of the specific reasons for the move;
a statement as to whether you do or do not believe that it’s necessary to change the order for parenting time or grandparent visitation;
a statement that a non-relocating parent must file a response within 20 days of being served with the notice;
a statement that a party can file a petition requesting an order to prevent the temporary or permanent relocation of a child;
a statement that a non-relocating person can file a petition to modify a custody order, parenting time order, grandparent visitation order, or child support order; and
a statement that all existing orders for custody, parenting time, grandparent visitation, and child support remain in effect until modified by the court.²

¹ Indiana Statutes § 31-17-2.2-1(a), (b)
² Indiana Statutes § 31-17-2.2-3(1), (3); 31-17-2.2-4

After I file a notice of intent to relocate, what happens next?

The non-relocating parent has 20 days after being served with your notice of intent to move to file a response that contains one or more of the following:

a statement that s/he consents or objects to the relocation;
a request for a hearing;
a request to change the custody, parenting time order, grandparent visitation, or child support order; and/or
a request for a temporary or permanent order to prevent the relocation.¹

If the non-relocating parent doesn’t file any response within 20 days, you can relocate.²

If the other parent requests a hearing, the judge will consider the following factors and decide whether to allow or deny the relocation:

the distance involved in the proposed move;
the hardship and expense involved for the non-relocating party to use his/her parenting time or grandparent visitation;
how easy it will be to keep the relationship between the non-relocating party and the child, taking into consideration the financial circumstances of the parties;
whether there is an established pattern of behavior by the relocating party to encourage or discourage the non-relocating party’s contact with the child;
the reasons why the party wants the relocation;
the reasons why the non-relocating party objects to the relocation; and
any other factor that affects the best interest of the child.³

¹ Indiana Statutes § 31-17-2.2-5(a)
² Indiana Statutes § 31-17-2.2-5(g)
³ Indiana Statutes § 31-17-2.2-1(c)

Where can I find more information on custody in Indiana?

Indiana Legal Services has:

General information about custody in Indiana, including the factors a judge will consider when deciding custody and an explanation of joint custody;
Information on modifying a custody order;
General information about visitation in Indiana; and
Much more information about custody in Indiana here, including who has custody if there is no custody order and whether or not a child can testify in court.

The Indiana Courts website has information on parenting time guidelines and parenting time forms.

If I move to a new state, can I transfer my child custody case there?

After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.

Legal Information: Indiana