USA – INDIANA Law and Practice Contributed by: Drew Soshnick, Faegre Drinker Biddle & Reath, LLP
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 Sec - tion 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 cus - tody determinations and Indiana Code Section 31-17-2-21 for custody modifications). Indiana Code Section 31-17-2-8 provides for the determination of custody and entry of an ini - tial custody order, in accordance with the best interests of the children. In determining the best interests of the children, 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 considera - tion 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 chil - dren’s best interests; • the children’s adjustment to homes, school and community; • the mental and physical health of all individu - als involved; • evidence of a pattern of domestic or family violence 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 consideration 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 responsibility for major decisions concerning the children’s upbringing, including the children’s education, healthcare, 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 an award of joint legal custody is in the best interests of children, courts shall consider it a matter of primary, but not of determinative importance, that the parties have agreed to joint legal custody (Indiana Code Sec - tion 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 considera - tion 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 envi - ronment 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 relat - ing to the best interests of the children.
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