There are two elements, or types, to assess when it comes to the custody of your child. First, and the one you will likely think of first, is physical custody. The second category to address is legal custody. The focus of this post will be on physical custody. The next post on custody will discuss legal custody.
Physical custody can be summarized as to which parent the child will spend the night with and when. Under the umbrella of physical custody, the options are joint/equal custody, and primary physical custody to one parent. Joint/equal child custody means what it says – each parent will have the child 50% of the time. When one parent has 51% of the time or more, that parent is considered to have primary physical custody.
Whether via an amicable agreement, negotiation between counsel, or mediation, the majority of parents in a divorce ultimately reach an agreement as to the division of time. Sometimes parents come into a divorce case having already discussed and agreed to a parenting time schedule. Other cases are not as agreeable and require negotiation and compromise.
If an agreement cannot be reached, then the issue of physical custody is determined by the court. The court is charged with determining the best interests of the child and the Indiana Code sets forth a list of factors for the judge to consider in making the determination. These factors include, but are not necessarily limited to, the following:
- The age and sex of the child.
- The wishes of the child’s parent or parents.
- 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.
- The interaction and interrelationship of the child with:
- The child’s parent or parents;
- The child’s sibling; and
- Any other person who may significantly affect the child’s best interests.
- The child’s adjustment to the child’s:
- School; and
- The mental and physical health of all individuals involved.
- Evidence of a pattern of domestic or family violence by either parent.
- Evidence that the child has been cared for by a de facto custodian.
For a more detailed description of these factors, please go to our discussion of custody/parenting time. Please feel free to call Roberts Means, LLC today at 317-353-3600 or contact us via email if you have any questions concerning the custody of your child.