While the custody of children is generally not a concern when a marriage is intact, issues concerning custody must be dealt with when parents decide to separate or divorce. This can of course pose numerous challenges to both parents and to the attorneys who represent them. It goes without saying that issues surrounding the custody and care of children can often involve high levels of emotion, which is certainly understandable. However, in the midst of the chaos and emotion, it is critical to gain at least a basic understanding of how the courts deal with custody-related issues. Better decisions are often made when parties are well informed of how custody issues are approached by the courts.

There are generally two separate child custody concerns that need to be addressed in most cases. The first is “legal” custody. Legal custody deals with the right of a parent or guardian to make major decisions concerning the child such as where the child will attend school or decisions related to the child’s medical care. “Physical” custody concerns where the resides and the responsibility of the child’s care on a day-to-day basis. Day-to-day matters include the things that the children do while in your care such as the activities they engage in or what they wear or eat on a particular day.

When it comes to custody agreements, or custody orders issued by a court, there are several possibilities. Often times, a joint legal custody, or shared legal custody, scenario is appropriate. Sometimes sole legal custody in favor of one parent is appropriate where it is apparent that the parties will be unable to effectively communicate with one another regarding child-related issues. Even still, a court may decide that its prudent to order a joint legal custodial arrangement in an effort to promote effective co-parenting, which generally results in better outcomes for the parties’ children. With respect to physical custody, many times, though not always, there is one parent who assumes the role of primary physical custodian. A parent who has a child more than fifty percent (50%) of the time is that child’s primary physical custodian. The parent who is not the primary physical custodian is then referred to as the noncustodial parent, which is not meant to imply that said parent does not have certain rights. In other cases, physical custody is split with each parent exercising parenting time half of the time. This would be considered a “joint” physical custody arrangement. Joint physical custody arrangements sometimes are desirable when the parties are able to coordinate scheduling in a workable fashion. The considerations that a court will evaluate in making a custody order are set forth by statute. I.C. 31-17-2-8 provides that:

The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following: (1) The age and sex of the child; (2) The wishes of the child’s parent or parents; (3) 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; (4) The interaction and interrelationship of the child with: (A) the child’s parent or parents; (B) the child’s sibling; and (C) any other person who may significantly affect the child’s best interests; (5) The child’s adjustment to the child’s (A) home (B) school; and (C) community; (6) The mental and physical health of all individuals involved; (7) Evidence of a pattern of domestic or family violence by either parent; (8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.

However, the court can also consider other factors in determining what kind of custodial arrangement is in the best interest of the children. In theory, there are any number of factors that the court could find relevant in fashioning a custody order in a specific circumstance. In making their determination, courts can enlist outside persons such as a custody evaluator or a guardian-ad-litem. Custody evaluators and guardian-ad-litems are enlisted as neutral parties and will generally prepare a report that is intended to assist the court in making a custodial and/or parenting time determination.

It is important to remember that the resolution of a custody dispute does not necessarily have to involve the court. Many times, though not always, the parties can arrive at an agreement on custodial issues and thereby avoid the necessity of litigating the matter. Because issues surrounding custody are so fact specific, and can be complex, it is best to have your attorney thoroughly explain custody-related issues so that informed decisions can be made.