USA – INDIANA Law and Practice Contributed by: Andrew Z. Soshnick, Faegre Drinker Biddle & Reath LLP
1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility In Indiana, “legal custody” is the equivalent princi - ple for parental responsibility. Indiana Code, Section 31-9-2-67 defines “joint legal custody” as parents sharing authority and responsibility for the major decisions concerning a child’s upbringing, including a child’s education, healthcare, and religious upbring - ing. If one party has the authority and responsibility for these decisions, that party has “sole legal custody”. These principles apply in wedlock and out-of-wed - lock situations and are embodied in Indiana Code, Sections 31-14-13-1 (out-of-wedlock), 31-14-13-2.3 (out-of-wedlock), 31-17-2-13 (wedlock), 31-17-2-14 A birth mother may indicate a preference for “joint legal custody” on an Indiana paternity affidavit. If a birth mother does not make this indication on an Indi - ana paternity affidavit, she is presumed to have legal custody subject to an action being filed by a father, in wedlock or out-of-wedlock, to seek sole legal custody or joint legal custody. 1.3 Requirements for Fathers (wedlock), and 31-17-2-15 (wedlock). 1.2 Requirements for Birth Mothers In wedlock, a father may seek joint legal custody in a legal separation or divorce action, and is similarly situ - ated to a mother. Out-of-wedlock, a father must seek to establish paternity, and meets his burden for joint legal custody if not established in a paternity affidavit. 1.4 Requirements for Non-Genetic Parents A non-genetic parent, if established as an adoptive parent, has the same requirements as a genetic par - ent. Establishment as an adoptive parent must be by court order. 1.5 Relevance of Marriage at Point of Conception or Birth The distinctions are covered in the previous sections. 1.6 Same-Sex Relationships As long as the same requirements covered in the pri - or sections are present, same-sex relationships are treated equally.
1.7 Adoption The requirements are the same as long as the adop - tive parents are established by court order.
2. Relocation 2.1 Whose Consent Is Required for Relocation?
Indiana has a relocation statute, Indiana Code, Sec - tion 31-17-2.2-1 et seq, originally adopted in 2006 and substantially amended in 2019, that provides notice requirements and opportunity to object to a child’s relocation. The lack of objection or filing by a non- relocating parent or court approval of an agreement of the parents to relocation allows for a relocation of a child. The non-relocating parent is the party who must provide consent. 2.2 Relocation Without Full Consent Under Indiana Code, Section 31-17-2.2-1 et seq, with reference to Indiana custody statutes, an Indiana trial court of competent jurisdiction resolves the reloca - tion issue. 2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation Indiana Code, Section 31-17-2.2-5 (e) places the initial burden of proof on the relocating parenting to estab - lish that the proposed relocation is made in good faith and for a legitimate reason. If that burden of proof is met, under Indiana Code, Section 31.17.2.2-5 (f) the burden of proof shifts to the non-relocating parent to establish that the proposed relocation is not in the best interest of a child. Indiana Code, Section 31-17- 2.2-2 provides that an Indiana trial court may con - sider the factors set forth under Indiana Code, Section 31-17-2-8 regarding an initial custody determination in a divorce case at an initial hearing to determine custody in a relocation action. Indiana Code, Sec - tion 31-17-2.2-6 permits an initial order temporarily restraining or permitting relocation of a child. 2.3.2 Wishes and Feelings of the Child Indiana Code, Section 31-17-2 8 (3), as incorporated in Indiana Code, Section 31-17.2.2-2 and the best
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