Indiana divorce courts and judges operate under one critical presumption and one legal imperative. The presumption is that – in most cases – a minor child of the marriage benefits from spending significant time with both parents. This leads to a baseline presumption that joint custody – legal, physical, or both – is the best arrangement. Again, this is the presumptive standard in most cases. Obviously, however, this custody arrangement does not fit all family situations. Which brings us to the legal imperative that judges use when awarding custody: Serve the best interests of the child.
While the parents might not always agree with the judge’s perspective or ruling, the court always seeks to do what’s best for the child – not the parents. With that said, however, sometimes conditions change or new factors come into play after custody has been awarded. It is possible, therefore, to seek a custody modification. This request will again go before the judge and the judge will (again) act in the child’s best interests.
Before we dig deeper into the reasons for a custody change and how to pursue a child custody modification, here are the basic types of child custody:
Types of Child Custody
A judge can award custody from these standard types:
- Legal Custody, which designates which parent is empowered to make important decisions for the child. Legal custody can be awarded to one parent as sole custody or to both parents as joint custody.
- Sole Custody, also known as Full Custody, in which only one parent is granted the right and responsibility to make these important decisions for the child
- Joint Custody, in which both parents share the right and responsibility to make important decisions regarding the child’s care and upbringing
And finally…
- Sole or Primary Physical Custody, which normally goes hand in hand with a sole or primary physical living arrangement. In a sole physical custody arrangement, the child lives with one parent full-time; while in a primary physical custody arrangement, the child lives with one parent most of the time.
Here are some common reasons why a change in physical custody might be warranted and then recommendations for what you can do to win physical custody:
Relocation
When relocation of one parent impacts the visitation rights of the other parent and could negatively impact the child’s wellbeing, a custody modification might be warranted. In most cases, a close-proximity relocation doesn’t cause a negative upheaval that would necessitate a custody change. However, moves of a greater distance – which could impact travel and visitation time and cause the child distress over loss of friend and family relationships – could justify a child custody modification.
Indiana child custody relocation laws require the relocating parent – even if that parent is non-custodial – to provide notice by a legal filing served on the other parent. The filing must be made at least ninety (90) days before the move takes place. This notice is required for out-of-state moves, but also for in-state relocations – even if the move is within the same neighborhood! The filing must contain key information as detailed in this blog post.
If the parent moved without providing notice and you can verify this, speak with your child custody lawyer about how to address this with the court up to and perhaps including a request for custody modification.
Violation of Custody Terms
Often, the need for a child custody modification is more complex and contentious than an easily verifiable parental relocation. For example, if the terms of the custody order have been violated, this impacts the rules governing the expectations and responsibilities of the parents. What’s more, it violates the legal authority of the court and undermines the court’s imperative to act in the best interests of the child.
In most custody arrangements, particularly in joint custody situations, there is some flexibility afforded the parents so they can co-parent amicably. But if one parent wilfully and maliciously violates the custody decree, this may force the other parent’s hand in seeking a child custody modification. Because alleged violations can often be one parents’ word against the other and could result from anger and communication issues, it is best to consult a child custody lawyer to provide counsel for the best course of action. This is especially important if there is a desire to seek sole or primary physical custody as this will impact the child’s home environment and could affect community and school relationships as well as visitation rights of the other parent.
If custody violations are severe enough, it could result not only in a custody change but also in the offending parent being held in contempt of court.
Change of Circumstances
A “change of circumstances” can be grounds for a child custody modification in many cases. However, the parent seeking to use this reasoning to gain physical custody must be able to show that the change in circumstances has negatively – and substantially – impacted the welfare of the child.
A change of circumstances can include many things or even a combination of situational changes that affects the mental and physical wellbeing of the child. For example, a child might suddenly be thrust into a living situation where there are multiple non-sibling children under the same roof. Or the custodial parent might have lost a job or be suffering financial hardship. Or the custodial parent could have entered a new relationship with a partner who does not get along with the child. The list of possible scenarios is virtually endless, but the parent petitioning for physical custody must be prepared to present evidence to the court showing that the changes warrant the child custody modification.
A Word About “Proof”
A parent who believes they have proof of custodial violations substantial enough to warrant a child custody modification should proceed with caution and seek the counsel of a child custody lawyer like the family law attorneys at Dixon & Moseley, P.C. Going too far in gathering proof could constitute a violation of the other parent’s privacy or be considered harassment. Any “proof” that would be useful to substantiate a request for change in custody must ultimately be admissible under prevailing legal rules of evidence.
Key Takeaways:
If you believe you have proof that you should have physical custody, what can you do? Working with your child custody lawyer, you can petition the court for a child custody modification. As you consider this, however, keep these factors in mind:
- Indiana child custody relocation laws require the relocating parent to provide notice at least ninety (90) days before the move. This notice is required even if the move is local.
- Because alleged violations can often be one parents’ word against the other, seek the counsel of a child custody lawyer
- Severe custody violations could result in the offending parent being held in contempt of court
- A “change of circumstances” can be grounds for a child custody modification in many cases if the parent seeking physical custody can show the change in circumstances has substantially impacted the child’s welfare
- A parent who believes they have proof of custodial violations should proceed with caution to avoid harassing or violating rights to privacy. “Proof” becomes evidence in court and must be admissible under prevailing legal rules of evidence.
At Dixon & Moseley, P.C., our attorneys leverage decades of collective experience when handling divorce cases, including cases involving child custody modification. To learn more, contact us today at (317) 972-8000.
We believe that being an educated legal consumer can help you make the most of the legal experience in meeting your legal objectives. This blog post, for example, provides general educational material regarding how to get custody of a child. This information is presented by attorneys at Dixon & Moseley, P.C. who practice throughout the State of Indiana. It is not a solicitation, nor is it intended to provide specific legal advice. It is an advertisement. Information contained herein is subject to change.