USA – INDIANA Law and Practice Contributed by: Andrew Z. Soshnick, Faegre Drinker Biddle & Reath LLP
that are in children’s best interests as to custody and parenting time so long as they are constitutional and do not improperly infringe on a parent’s right to have access to and raise children. A custodian may determine the children’s upbringing, including education, healthcare, and religious train ‑ ing, unless limited by court order due to the children’s physical health being endangered or emotional devel ‑ opment significantly impaired (see Indiana Code, Sec ‑ tion 31-17-2-17). An award of joint legal custody does not require an equal division of physical custody of the children (see Indiana Code, Section 31-17-2-14). As to physical custody and parenting time for children, courts look at the statutory factors (Indiana Code, Section 31-17-2-8 for initial custody determinations and Indiana Code, Section 31-17-2-21 for custody modifications). Indiana Code, Section 31-17-2-8.2 requires courts to enter specific findings of fact and conclusions of law when making custody determina ‑ tions. Indiana Code, Section 31-17-2-8 provides for the determination of custody and entry of an initial cus ‑ tody order, in accordance with the best interests of the children. In determining the best interests of the chil ‑ dren, there is no presumption favouring either parent. Courts shall consider all relevant factors, including: • the age and sex of the children; • the wishes of the parties; • the wishes of children (with more consideration given to the wishes of children aged 14 or older); • the interaction and interrelationship of the children with the parties, siblings, and other persons who may significantly affect the children’s best interests; • the children’s adjustment to homes, school and community; • the mental and physical health of all individuals involved; • evidence of a pattern of domestic or family vio ‑ lence of either party; • evidence that children have been cared for by a de facto custodian (defined in Indiana Code, Section 31-9-2-35.5 and with additional factors for consid ‑ eration set forth in Indiana Code, Section 31-17-2- 8.5); and
• a designation in a power of attorney of a party or a de facto custodian. Indiana Code, Section 31-9-2-67 defines “joint legal custody” as parties sharing authority and responsi ‑ bility for major decisions concerning the children’s upbringing, including the children’s education, health ‑ care, and religious training. Indiana Code, Section 31-17-2-13 indicates that courts can award joint legal custody if the court finds it is in the best interests of the children. In determining whether or not an award of joint legal custody is in the best interests of chil ‑ dren, courts shall consider it a matter of primary, but not of determinative, importance, that the parties have agreed to joint legal custody (Indiana Code, Section 31-17-2-15). Courts shall also consider: • the fitness and suitability of each person; • whether parties are able to communicate and co- operate in advancing the children’s welfare; • the wishes of children (with more consideration given to the wishes of children aged 14 or older); • whether the children have established a close and beneficial relationship with both parties; • whether the parties live close to each other and plan to continue to do so; and • the nature of the physical and emotional environ ‑ ment in each party’s home (Indiana Code, Section 31-17-2-15). Indiana Code, Section 31-17-2-21 provides that courts may not modify child custody orders unless the modification is in the best interests of the children and there is a substantial change in one or more of the factors set forth in Indiana Code, Sections 31-17- 2-8 or 8.5. Courts shall not hear evidence on a matter occurring before the last custody proceeding unless that matter relates to a change in the statutory factors relating to the best interests of the children. The Indiana Supreme Court has established the Indi ‑ ana Parenting Time Guidelines, which – in the absence of extreme circumstances – serve as a guide for the minimum amount of time a non-custodial parent will have with children. There are age gradations suggest ‑ ing different frequency and duration for a parent’s con ‑ tact with children depending on the children’s ages. There is also a detailed suggested schedule for holi ‑
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