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.

Child Support

      When a petition for dissolution of marriage is filed, one of the first concerns that every mother and father has is what the custodial arrangement will be regarding their children. For those who become non-custodial parents, the next question then turns to “what amount will I need to pay in child support to take care of my children?” Depending upon the circumstances of your case, that question could be a difficult one to answer. However, the Courts and the parents do have guidance from the Indiana Child Support Rules and Guidelines.

      The amount of child support that will ultimately be ordered by the Court, or agreed upon between the parties, is typically based upon applying their set of facts to the Indiana State Child Support Guidelines. The main elements that are factored into the child support calculation include but are not limited to the following: (1) Each parties’ gross weekly income; (2) The weekly cost of health insurance premiums for the children paid by one of the parties; (3) The cost of work-related child care expenses incurred by one or both of the parties; and (4) The number of overnights the non-custodial parent has with regard to his/her parenting time. Information regarding the Child Support Rules and Guidelines can be found here.

      It is important to seek legal advice when determining the appropriate application of the child support guidelines in order to maximize the benefit to you and your children. Contact Eric Benner or Alicia Adcock if you have any questions with regard to the amount of child support that you should be receiving or paying. We would be happy to help you navigate the often times confusing application of the child support guidelines to your unique situation.

Property Distribution in Divorce Proceedings

     Indiana follows the "one-pot theory" with respect to marital property. Therefore, any assets and debts brought into the marriage or acquired during the marriage are subject to division by the court. Assets include items such as personal property, real estate, bank accounts, inheritances, retirement accounts, business interests and intangible property. Debts include items such as credit cards, loans, mortgages, student loans and promissory notes.

     It is presumed that a 50/50 distribution of the marital assets and debts is just and reasonable in all divorce actions. However, a party may challenge this presumed distribution by offering evidence to the court that a 50/50 distribution would not be just and reasonable in their particular case. Relevant factors that could justify a deviation are set forth in Indiana Code Sec.31-15-7-5 and include the following:

"(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.

(2) The extent to which the property was acquired by each spouse:

(A) before the marriage; or

(B) through inheritance or gift.

(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.

(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.

(5) The earnings or earning ability of the parties as related to:

(A) a final division of property; and

(B) a final determination of the property rights of the parties."

     If you have questions or concerns about the impact a divorce could have on your finances or property rights, contact Eric Benner or Alicia Adcock for more information.

Co-Parenting Difficulties

          In Indiana, the noncustodial parent has a duty to pay child support for the benefit of his/her child. The right to receive child support is the child’s right not the right of the custodial parent. Unfortunately, many parents find themselves in a situation where it may seem easier to agree that the noncustodial parent will not pay child support, and in exchange, the noncustodial parent will not have any parenting time or input into the child’s life. On June 25, 2013, the Indiana Supreme Court  held that such agreements are void as a matter of law and stated “the concept of parents negotiating away parenting time as a means to eliminate the obligation to pay child support is repugnant and contrary to public policy.” Perkinson v. Perkinson, 36S05-1206-DR-371. 

In an opinion written by Justice David, the Court reiterated that it is presumed that the best interests of the child are served by receiving parenting time with both parents. The Court stated that the child has a right to parenting time with the noncustodial parent, and courts cannot deny a noncustodial parent’s request for parenting time absent specific findings that the noncustodial parent would endanger the child’s physical health or well-being or significantly impair the child’s emotional development. Therefore, agreements made between parents that contract away the child’s right to parenting time, when the presumption that such parenting time is in the child’s best interest has not been defeated, are void or unenforceable as a matter of public policy. 

            Co-parenting after a divorce or determination of paternity is difficult. You may believe that life would be easier or better if you or the other parent was not involved in your child’s life. In this recent decision, the Indiana Supreme Court has reinforced that, in most circumstances, it is in the child’s best interests for both parents to be involved in the child’s life. If you find yourself in a difficult co-parenting situation, there are options available to high conflict parents to learn to work together or co-parent for the benefit of their children such as Parenting Coordinators, Parallel Parenting or in-depth Parenting Plans. Contact Eric Benner or Alicia Adcock to discuss these options as well as other options available to you based upon your specific circumstances.

           For the full text of the Perkinson opinion click on this link: http://www.in.gov/judiciary/opinions/pdf/06251303shd.pdf

Divorce Inevitable?

     Like many people today, you may find yourself in a marriage that is irreparable due to a spouse being unfaithful, an inability to communicate or a general unhappiness due to several complex factors that exist inside your marriage. You are likely wondering what your legal options are going forward.       
     You may be asking yourself questions such as: Should I file for divorce? Are there other options available to me short of filing for divorce? What are my rights with respect to my property? More importantly, what are my rights with respect to my children.  How will the bills be paid?  Who will live in the house?
     All of these questions, and likely more, need to be answered by someone you can trust. It is important for you to seek advise from an attorney who has the experience, knowledge and expertise to guide you through this difficult and life-changing process. If you find yourself in this position and would like more information, Contact Eric Benner or Contact Alicia Adcock to set up an appointment so that you are fully informed as to your rights and options regarding legal separation or divorce.