Physical Custody Determinations in Divorce Actions

     Although custody is a term most people have heard before, many people do not know that there are two types of custody: physical custody and legal custody. This post will focus on physical custody which is essentially determining which parent the children will reside with on a regular basis.
   
     In making any decision regarding children in a divorce action, the court's primary consideration is the "best interest of the child" standard. Therefore, the child's interests will be placed before the interests of either parent in making the custody determination. The court will also consider which parent has been the primary care-giver to the children in order to make the determination of which parent should receive primary physical custody of the parties' children. The parent who receives primary physical custody of the children is referred to as the "custodial parent". The other parent is referred to as the "non-custodial parent".

     There is not a presumption that either the mother or the father should receive primary physical custody. Rather, the court should consider the specific facts of each case in order to make the correct custody determination. In addition to the above considerations, the court will consider the following factors as set forth in Ind.Code Sec. 31-17-32-8 in making its physical custody determination:

   (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.

     After considering all of the above factors, the court will make its decision regarding physical custody. The custodial parent is entitled to receive child support from the non-custodial parent in accordance with the Indiana Child Support Guidelines and the non-custodial parent is entitled to receive parenting time in accordance with the best interests of the child and the Indiana Parenting Time Guidelines. 

     The physical custody determination is very fact sensitive as each family unit is unique. Although the court may consider the aforementioned factors, you and your spouse may be able to agree to a custodial arrangement that works for you and your children. When it comes to making decisions regarding your children throughout the divorce process, it is advisable to try to work together with your spouse as it is usually best for your children. In some circumstances however, it is appropriate to take your custody case before a judge. If you have questions about the custody of your children in your divorce case, contact Eric Benner or contact Alicia Adcock for more information on how the law applies to your specific circumstances.