Legal Custody, Physical Custody, and Parenting Time
First, if you have children, we understand that they are the most important thing in your world. They are the most important part of your divorce or separation. We understand this and we commit to doing everything we can to help you protect your children as we handle your case. Our attorneys regularly work with mental health professionals to present materials to other attorneys, judges, and mental health professionals about how to minimize the impacts of the divorce process and the divorce itself.
Divorce and separation are not easy for children. Social science research is very clear that the more conflict the children are exposed to, the higher the future risks for those children. We suggest taking a moment with your spouse and with your attorney at the beginning of the process to plan out how to share the news with the children, to agree on what level of information will be shared with the children, and on what information will not be shared with the children. We recommend to all our clients that they seek mental health counseling during the legal case and after as may be desired. Sometimes, it becomes appropriate that children also receive mental health counseling.
Most current research discusses three models of parenting after a separation: co-parenting, parallel parenting, or high conflict parenting. You will not be surprised to learn that co-parenting (e.g., good and open communication between parents about the children) is best for the children and the most difficult for parents to achieve after separation. High conflict parenting (e.g., frequent fights in front of the children, requests for children to spy on the other parent) is by far the worst. What may surprise you is that parallel parenting---sometimes also called disengaged parenting---has outcomes almost as positive for children as co-parenting. It appears that it is almost impossible for parents to move from high conflict parenting to co-parenting, but that it is possible for parents to move from high conflict parenting to parallel parenting, although they may need some help doing so.
One local judge advises parties to 'love your children more than you hate the other parent.' If you think you and the other parent may need some help reducing conflict for your children, please discuss that with your attorney and a mental health professional familiar with children's development. We can discuss ways to help reduce conflict, whether that's ensuring we get a very specific agreement that addresses parenting time in great detail to minimize future fights, setting up a system for each parent to provide a weekly e-mail update on the children to the other parent, or even enlisting the services of a paid neutral professional, a Parent Coordinator, to help address issues as opposed to frequently having to return to Court.
Legal Custody is the authority to make major decisions for a child, generally in the areas of health care, education, and religion. Indiana law technically has no default in preferring joint legal custody (parents have equal control) or sole legal custody (one parent is in charge). However, many local courts seem to have a preference for joint legal custody.
Physical custody addresses where the children spend their time. There is no preference in Indiana law for shared or joint physical custody, or for either parent to have primary physical custody. If a judge is tasked with deciding where a child will spend his time, she will do so based on what is in the child's best interests. With shared or joint physical custody, the parents have equal time with the children. In split physical custody, multiple children are split between the parents with some children residing primarily with mom and the others with dad. The parent who has the children a majority of the time (if applicable) is often called the 'custodial parent.'
Parenting time is the time the non-custodial parent (the one with whom the children do not primarily live, if applicable) spends with the children. The Indiana Parenting Time Guidelines (IPTG) set forth a minimum amount of time that a non-custodial parent will have with the children, in most cases. It is important to note, however, that these guidelines do not apply to some cases, such as those where is a history of domestic violence. In addition to providing some scheduling suggestions, the IPTG also set forth some guidelines for how to operate as co-parents, such as making sure the children have phone time with the other parent, and
Roughly, the IPTG call for the non-custodial parent to have the children for every other weekend, alternate holidays and school breaks, and half the summer (depending on the age of the child). However, it is also possible to have differing arrangements which could include anything up to completely equal time for the children with both parents (joint physical custody). We suggest looking at what schedule would be best for your children. Some children need to go no more than a day or two without seeing a primary caregiver even if they're a bit older, some children thrive with both parents and the communication is good enough that soccer cleats left at one house or the other are surmountable problems, and some children are fine with any schedule so long as it's consistent.
If you believe that the other parent cannot have at least the amount of parenting time provided for in the guidelines, that is a serious issue to discuss with your attorney at the earliest opportunity, as you will need evidence that allowing unrestricted parenting time with that parent poses a risk of significant emotional endangerment or physical harm.
If you have concerns about the other parent, you may be concerned about the children while in that parent's care. For example, if the other parent has serious drug or alcohol issues, mental health disorders, or a new abusive spouse, you may wish to bring that up in terms of how it affects custody and parenting time. However, a judge cannot make decisions related to custody or parenting time based on anything other than evidence presented at the hearing--which means witnesses, evidence, and argument.
As you can imagine, we almost never wish to bring the children themselves in as witnesses due to the impact on them. In most situations, no other witness can repeat something that a child has said, as that would be hearsay (an out of court statement offered to prove the truth of the matter asserted). Thankfully, there are a few alternate routes for getting the child's voice into court without bringing the child him or herself. If you think that a parent's mental health is an issue, you may want to consider asking for a custody evaluation. These can be quite expensive ($5,000 or more) but are one of the only ways to get a psychological evaluation of each parent (if you ask for it, you can count on having to go through it yourself) into evidence. A custody evaluation is conducted by a mental health professional.
We can also ask for appointment of a Guardian ad Litem (GAL). A GAL acts as an attorney for the children and is most often an attorney him or herself. A GAL cannot usually do a psychological evaluation but can recommend it if the GAL believes it necessary. The GAL concentrates most effort on talking to the children (if age and ability allows) and to third parties such as teachers, coaches, extended family, neighbors, etc., in addition to reviewing records, to gather information about how the children do at each home. The GAL takes the details gathered in the investigation and writes a report for the judge. The Judge has complete freedom to accept the GAL recommendations completely, not at all, or anything in between. In practice, though, most judges often adopt some or all of a GAL's recommendations. Indiana law allows statements in a GAL report to be entered into evidence if certain conditions are met, even if those statements would otherwise be hearsay.
Disclaimer: This summary is not intended to be comprehensive, and should not be construed as legal advice for your particular situation. Nothing in this website is intended to substitute for legal representation.