Intro To Indiana Custody Laws
The complex landscape of Indiana custody laws is familiar to most seasoned family law attorneys. For unmarried parents, the scene can be deceptively simple; other than the basic requirement that the child support be re-routed through the county child support office, it’s as if the Indiana Parenting Time Guidelines, parenting time, and other related issues don’t exist. Generally speaking, the same rules that apply to married parents in Indiana, don’t apply to unmarried parents. Statutorily, this is primarily a result of having no basis for custody in the law pertaining to unmarried parents. Custody is primarily about two things: 1) where your children will spend the time and when that occurs; and 2) who gets to make the important decisions for your children. In the State of Indiana, child custody is not as simple as the custody law may appear. Because the word "custody" does not appear in Indiana’s intestacy statute, it is not clear whether the laws dealing with custody and parenting time would apply to unmarried parents. There is also no case law explicitly saying that the custody laws do or do not pertain to unmarried parents. There is a subset of case law that indicates that the Indiana Parenting Time Guidelines, indeed, do not apply to unmarried parents. However, the custody statute (IC 31-14-12-12) applies to both married and unmarried parents.
What does the custody statute say about unmarried parents? The custody statute provides that both parents shall have custody of the child , if the parents are not married. That does not give any guidance to the trial court; it does not say joint custody or sole custody or anything of that nature. By definition, the term joint custody means the parents get to make decisions together on all matters. Sole custody signifies to a parent that he or she has primary authority to make decisions about the child. That leaves couples with no marital ties in a legal quandary of whether joint legal custody is appropriate. There is no presumption in favor of either joint or sole custody. The law simply does not apply to unmarried parents as it gives them no guidance in what they are going to have to do.
The custody statute goes on to say that the parenting time guidelines should apply to unmarried parents. This is an acknowledgment by the legislature that there are needs for basic rules among unmarried parents. After nearly 20 years of applying the parenting time guidelines with unmarried parents, it is hard to imagine a world without those rules. Most practitioners and most trial courts apply the parenting time guidelines to unmarried parents. In the absence of a statute applying the parenting time guidelines, though, the guidelines are not mandatory. However, since approximately 80 percent of children in the United States are born out of wedlock, and many parents continue to separate and divorce, some rules are better than no rules. Still, there should be a statutory basis for the rules.
Paternity in the State of Indiana
In Indiana, the biological father has no inherent legal rights as a parent over his child born out of wedlock. The status of the father as a legal parent must be established either by an agreement between the father and the mother, or through a court order establishing paternity. Paternity means that the father is recognized as being the biological father of the child. Although fathers who are not married to the child’s mother have no automatic parenting time rights, Indiana law provides for an ongoing relationship with the child. Unmarried fathers may petition the court for periods of parenting time. When the father is seeking parenting time, courts generally consider what is in the best interests of the child. Fathers who are not married to the child’s mother may seek appropriate parenting time even where the child was born before the filing of the parentage case, assuming that the court determines that the contact is in the child’s best interest. When the father and mother are in agreement as to the establishing paternity, neither party must seek a court order establishing paternity. There is a specific Indiana form, called a "Paternity Affidavit," which can be used to establish paternity. To obtain genetic testing, a person wishing to establish paternity may request such testing from any provider of the test. This is often obtained through the local child support offices. Many paternity testing labs in Indiana offer testing, as well. After the father is establish as the child’s legal father, he then may obtain custody or parenting time rights by seeking an order from the court.
Custody and Unmarried Parents
Indiana law provides for both physical and legal custody of a couple’s child; physical custody refers to where a child resides and is responsible for the care of the child. Legal custody involves who makes decisions about the child’s upbringing. When it comes to custody, there are two possible arrangements: The above categories are not strictly set in stone. In some cases, joint legal custody may be ordered along with the custody of the primary residence of the child. Conversely, physical custody may be held by one parent while legal custody is awarded jointly. Either parent can file for custody. When both parents file at the same time, the court will establish which party is the primary caretaker to determine primary physical custody. Even if a child is born out of wedlock, the court will still consider options for joint physical legal custody and joint physical custody or the sole custody of one parent. Although Indiana courts will not limit consideration to the mother as the primary caretaker of a child, as is the case throughout much of the country, it is important to remember that the mother usually has sole custody of the child until a custody order is issued. This is because of a preference for the child to stay with their mother when the mother is the only custodial parent. Courts always prefer what is in the child’s best interest, however, and primary physical custody can be awarded to the father or the mother. In fact, physical custody is increasingly being awarded to fathers. Some courts may also allow alternation between parents in primary custody.
Visitation for Unmarried Parents
Like custody, Indiana law provides identical processes for granting visitation rights to fathers and mothers. Generally, courts examine multiple factors when determining visitation rights for unmarried parents. What is crucial for unmarried parents to know is that, regardless of who the custodial parent may be, the other parent has a right to seek visitation with the child. Even in cases, where the married parents do not seek divorce or separation, that law applies to them as well.
Further, when determining whether to grant visitation to one parent, courts consider factors including: (1) the relationship between parent and child; (2) residential proximity of the child and the parent (i.e., distance from home, etc.); (3) the age and health of the child; (4) the impact of visitation on the child’s daily routine; (5) the presence of other individuals residing in or frequently visiting the home; (6) the willingness and ability of the parents or each parent, individually, to facilitate and encourage a close and continuing relationship between the non-custodial parent and the child; and (7) other relevant factors.
Where the child’s physical, mental, or emotional condition is at risk, a court can restrict or even deny visitation. Further, if the court restricts visitation, it can still order periodic review of the limited contact to determine if the condition of the child has improved sufficiently to allow for expanded visits. If the victim of domestic violence is granted custody, that person’s child cannot be ordered to visit the alleged perpetrator of the domestic violence.
Of course, not all issues between parents are limited to custody and visitation. Other domestic relations issues are commonly encountered by unmarried parents as well. For instance, may unmarried parents relocate? Can child support be garnished? Courts try to resolve all issues related to domestic relations as completely and efficiently as possible.
Changing Custody and Visitation Orders
As previously explained, when parents are not married, custody and visitation matters can be more complicated than when the parents are married. To have a change in custody, a parent must demonstrate that:
• A change in the custodial parent has occurred that substantially and fundamentally alters the parenting environment;
• The situation, when viewed objectively from the child’s best interest standard, is one of sustained dissatisfaction that reached the level of adversarial contest; and
• The two-prong test above must be satisfied for at least one year.
The Court analyzes the date custody began and when it ends. A modest change in circumstances will not allow a modification of parenting time or custody .
The process for removing or reducing the current custodial parent’s parenting time is as follows:
• A complaint should be filed with the Court.
• An Affidavit should be filed and proposed order.
• A hearing should be conducted.
There should be a demonstration of extraordinary circumstances to devote time and resources in hearing the claim. Someone must prove a genuine case of neglect or abuse. Simply because a new person becomes a part of the child’s life does not mean parenting time should be reduced. There needs to be a significant change in priority.
Our firm has successfully navigated many cases involving custody and visitation issues. We know how to draft pleadings to get the desired result in Court. We have handled many custody cases in trial court and appellate court.
Indiana Legal Resources for Unmarried Parents
Organizations and legal aid clinics are available to help contract parents understand their rights and responsibilities. The Indiana Coalition Against Domestic Violence offers valuable information on parenting and custody, and provides resources for those dealing with allegations of abuse. Legal aid clinics may offer assistance to low-income unmarried parents seeking to establish paternity or in need of representation.
In some cases, unpaid child support can be a barrier to gaining paternity rights for an unmarried father in Indiana. Organizations such as the Child Support Bureau for the State of Indiana provide detailed information on the child support process, including how the courts handle violations of payments and procedures to rectify failing to pay.
If you are an unmarried father seeking help with a paternity or custody dispute, or you are an unmarried mother in need of child support payments, consider The Fathers for Equal Rights Foundation in Indiana. The organization also provides resources and networking opportunities for fathers to connect and form balanced relationships with their children.
Issues for Unmarried Parents
In Indiana, unmarried parents face several challenges when it comes to gaining full custody of their child. While the law takes the best interests of the child into consideration, we understand that this can be a disheartening process of trial and error; particularly for parents who wish to obtain full custody of their children. Rarely is this achievable in Indiana; in fact, when an unmarried parent has established paternity with their child, it is common for the parent to be granted partial custody of the child right out of the gate. However, you should know that there are a number of measures you can take to help improve your chances of obtaining full custody of your child.
For starters, you should work with an attorney who can efficiently advocate on your behalf. Even if you and the mother of your child have agreed on a parenting agreement together, a lawyer can help make that that agreement binding. When you file for paternity, the court will require you to sign off on a parenting time plan that identifies how much time each parent will spend with the child and the decision-making authority the parents have. As such, if you hope to obtain full custody of your child, you should specifically note your demands in this initial petition to establish paternity with the court.
As mentioned earlier, if you hope to secure full custody of your child, it is often a good idea to petition the court right away. Once the court establishes regular visitation times, the judge will look at how the child behaves during their time with the non-primary caregiver parent. If your child seems to be feeling stressed or anxious during visitation, this negative behavior may be noted by the court and used against you should you attempt to file a petition for sole custody down the line.
Conclusion and Final Considerations
In this article, we have covered the basic elements of Indiana custody law for unmarried parents and fathers and mothers who are not currently married to one another. If the parents choose to separate after a child is born, the separation agreement will probably contain a parenting time order, probably allocate physical and legal custody, and might contain an order requiring child support to be paid.
If the parents do not choose to separate, they might live under the same roof for the child’s entire life. In that case, there will be a "periodic" basis for determining child support, such as if one parent moves out of the house or takes a job that requires travel. If you are living with the mother of your child, then child support is your obligation and you should calculate it using the worksheet, even if you are not actually paying the support . If and when the relationship between you and mom deteriorates and you leave the house, you will need to calculate child support and file an action for support with the court where the child lives.
To summarize, if you are not married to the mother of your child, then you share legal custody of the child. You are entitled to a parenting time schedule with the child. You may get shared physical custody of the child, or you may split the child’s time between your home and the home of the mother. We wish you and your child the best of luck.
Final tips:
- Keep track of how much time you spend with your child. Courts want to know your actual timeshare, not what is on a parenting time order.
- Don’t fight about trivial matters. Sit down and determine what differences can or cannot be resolved between you and the child’s mother.
- Subscribe to a good parenting time organizer app, like Our Family Wizard (an Apple store favorite). You can log visitation issues in real time and keep track of your expenses.