Child Custody, Parenting Time (Visitation), and Child Support

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Legal Custody vs. Physical Custody

There are two basic forms of custody in Indiana - legal custody and physical custody.

  • Physical custody refers essentially to where the child(ren) are physically located. Parents can share joint physical custody, meaning that the children spend equal time with each parent. Or, one parent can have primary physical custody, with the other parent having "parenting time" (often referred to as visitation). Regardless of the physical custody arrangement, legal custody is a separate issue.
  • L egal custody refers to how to deal with major decisions (i.e. religious upbringing) that arise in a child's life. Parents can share joint legal custody or one party can have sole legal custody.

Custody & Parenting Time

An Indiana Court will make decisions about custody and parenting time based on the child's best interests. "Parenting Time" is simply another term for "visitation," and refers to the actual physical parenting time plan that divorcing or divorced parents have with their children. In determining the best interests of children, courts may consider any number of factors, including but not limited to, the age and sex of the child; the wishes of the child's parents; the wishes of the child, with consideration given to the child's wishes if the child is at least 14 years of age; the interaction and interrelationship of the child with the child's parents, siblings, and any other person who significantly affects the child's best interests; the child's adjustment to the child's home, school, and community; the mental and physical health of all parties involved; evidence of a patterns of domestic or family violence by either parent; and evidence that the child has been cared for by a de facto custodian (someone other than the parents themselves).

Indiana Parenting Time Guidelines

As a general rule, Indiana courts permit parents to agree upon parenting time schedules to fit their specific family's needs. However, Indiana adheres to the Indiana Parenting Time Guidelines ("IPTG"), which are presumptively applicable unless the parties agree to a different arrangement. Also, it is within the Court's discretion to order a derivation from the Guidelines.

Enforcing a Child Support Order

The failure to pay child support is a problem of national proportions. In Indiana several mechanisms provide for the collection where child support has not been paid.

Wage Assignment: This allows direct payments from the obligor's employment checks.

Writ of Execution: A child support order can be enforced in the same manner as other judgments. Bank accounts can be seized, stock and real estate sold and wages garnished.

Bring a Civil Contempt of Court Action: If an obligor fails to pay child support the spouse may file a contempt of court action in the original court where the divorce and child support orders were issued. In some instances the court can even provide jail time for the non payment of child support.

Child Support FAQs

How do I determine how much child support I will have to pay / will receive?

In Indiana, child support orders are based on the Indiana Child Support Guidelines. The theory behind the guidelines is that the children should enjoy the same standard of living that they would have enjoyed if the parents had stayed together.

Child support is calculated from a formula. In order to determine the child support order, certain factors have to be known. For starters, it is imperative to know each parent's gross weekly income. This, in and of itself can be tricky to determine, and is often the subject of litigation, because gross weekly income for tax purposes is not the same as gross weekly income for the purposes of calculating child support. For instance, people who are self-employed are not allowed to take certain "deductions" that are perfectly acceptable and legal with respect to the IRS. A parent's gross weekly income takes all types of income into consideration (with only a few exceptions). After gross weekly income is determined, it is important to know information concerning either parent's other children (prior born and subsequent), as well as costs of the children's portion of healthcare insurance, the cost of work-related child care, and the number of overnights the children will spend with each parent.

The Indiana Child Support Calculator can be a useful tool to see how it works in your particular case. Be aware, however, that every child support calculation is different, and you might not be aware of additions or subtractions that might apply in your case.

Why does the paying parent receive a credit for overnight visits with the child or children?

When the children are physically with the parent who pays child support, that paying parent has the responsibility for feeding the children, spending extra money on gas taking the children to/from school or extracurricular activities, paying for additional utilities (presumably the expenses for water, electricity, etc are higher when the children are there). The credit received by the paying parent is intended to help offset those out-of-pocket expenses while the children are with him or her.

How can I be sure child support is paid?

The best practice for everyone involved is to use an income withholding order (IWO), in fact, some Indiana courts actually require child support to be paid via IWO. An IWO is an order that directs the paying parent's employer to deduct the child support right from the parent's paycheck. That money is then sent to the clerk of the court or the centralized collection bureau. By taking the money right out of the paycheck, the child support gets paid before all of the other bills and expenses, so the parent can't fall behind.

What if a parent quits or loses his/her job?

If the parent quits a job in order to avoid paying child support, the court will most likely not change the support order, and will use coercive methods to "nudge" the parent into paying. These can include ordering the parent to apply for jobs and provide proof of the application or monetary fines. If a parent is simply refusing to pay support and runs up a sizable arrearage, the court can order the parent jailed. The jail sentence usually provides for a certain length of time or the payment of a certain amount, whichever comes first.

Believe it or not, a jail sentence quite often produces a hefty payment toward the support obligation.

What if the paying parent leaves the state?

In cases where a parent leaves and tries to avoid paying support that way, the local prosecutor can ask the prosecuting attorney near the paying parent to begin a reciprocal enforcement action. In other words, the child support order follows the paying parent around.

I hear about people's tax refunds being taken because they owe child support. Does this really happen?

You bet. If a person has a sizable arrearage, the state can intercept tax refunds on behalf of the custodial parent.

How much child support will I have to pay?

In Indiana, we do not use a simple "X dollars per child" child support system. Instead, we have a more complex, but in some ways more realistic, theory. Sit back and relax. We'll be here for a little while.

Custody and Visitation FAQs

Should I ask my children where they want to live after the divorce?

It is almost NEVER a good idea to speak to your children about where they want to live after the divorce is final. Involving children in this manner puts them in the situation of having to choose one parent over the other. Even if you believe your children would prefer to live with you, asking them to verbalize that brings them into the emotional turmoil.

My child says he wants to live with me. What should I do?

First, consider the possibility that the child is saying what he thinks you want to hear. We often hear clients say that children have expressed a strong desire to live with one parent...but it is not unusual for children to make that statement to both parents. Divorce is very difficult for children. Almost all children just want their parents to stay together. Many children are pleasers, and make comments to make their parents happy. Children are also very smart and can easily determine how to manipulate their parents---especially in a divorce situation when the parents are often not communicating between themselves to realize what is happening.

Regardless of the reason, it is important to understand that these types of statements from children are not uncommon, and you should be careful in accepting these sorts of statements at face value.

Assuming that you determine that it really IS your child's desire to live with you, you should next consider whether it really is in the child's best interests to live with you. Where your child wants to live is not always what is in your child's best interests. You are the parent and you are the best to determine your child's best interests. In determining whether you are the person most suitable to have custody of your children, you should consider whether your work schedule permits you to be available to your children, whether you will be able to set down rules and enforce them, what type of school your child would attend if in your primary physical custody, etc.

My spouse and I simply cannot agree on who should have custody of our children. What can we do?

There are all kinds of options that you and your spouse can try before resorting to a "custody battle" to determine who should have custody of your children. Sometimes counseling can be helpful. Mediation is also a helpful tool in assisting people reach resolutions through compromise. The most important thing to remember is, if you can reach an agreement in any way, it is important to do that. Reaching an agreement will likely mean that you will have to make some compromises and your spouse will have to do the same. The beauty of an agreement is that you get to decide. When you ask the judge to determine the custody of your children, you lose all of the power. Someone who does not know you, your spouse or your children will be making a decision that will substantially impact all of your lives. Further, having a judge decide custody issues means that you will have to go into the courtroom, say negative things about your spouse and your spouse's parenting; and you spouse will do the same thing to you.

Custody battles take a long time, are expensive, and are often emotionally very painful, not just for you and your spouse, but for your children as well. Although you may be very angry with your spouse, saying those things to your best friend is very different than saying those things in open court, in front of your spouse, and "on the record." Regardless of how upset you are at your spouse right now, you have to co-parent with this person for the rest of your life---not just until you child turns 18 or 21---forever! You will both be at your child's wedding, the birth of your grandchildren, your grandchildren's birthday parties, etc. What you say in court cannot be taken back. And what you hear in court, you may never be able to forget or forgive. Starting off this way makes future coparenting very challenging. When you can avoid custody battles and resolve matters yourself, it is best to do so.

That being said, it is sometimes just not possible to avoid seeking the court's assistance in making a custody determination. If you find yourself in this situation, it is important that you put together your case such that you present the best possible case to the judge to convince him or her that it is in your child's best interests for you to have primary physical custody. An experienced custody attorney will discuss all of this with you, and will assist you in framing your case in the best, most concise way to convey to the judge your position on your child's best interests.

How does a judge decide which parent should have physical custody if the parents can't agree?

A judge must decide custody based on the best interests of the child. Indiana law requires that the judge considers all relevant factors, including but not limited to, the age and gender of the child, the strength of the child's relationship with each parent, the wishes of each parent, the wishes of the child, any history of domestic violence or other abuse, and so on. Judges have broad discretion in making custody decisions.

At what age can my child decide where he wants to live?

People often have misunderstandings about this issue. The simple answer is that a child's wishes are never enough for a court to make a custody determination. It is true that Indiana's custody statute includes a child's wishes as one of the factors that a judge should consider in deciding the child's best interests. It is also true that the wishes of children who are at least 14 years of age are given more weight by the judge in making such custody decisions. However, the child's wishes do not control the outcome of the case. Preferably the parents decide where a child will live, but if the judge decides, the child's wishes are only one consideration.

Should I have a custody evaluation done in my case? Will it help my case?

You should go through the specific pros and cons of a custody evaluation with your attorney, as your case has specific facts that need to be considered when making this decision. Generally, custody evaluations can be expensive, take a substantial amount of time (and can delay reaching a final resolution). However, they can also be wonderful tools in giving the court an inside view of what is going on with your family. Depending on the age of your children, a custody evaluator may be a good way to address your children's wishes.

What is DRCB [Domestic Relations Counseling Bureau?

The Domestic Relations Counseling Bureau is a Court agency that assists families experiencing disagreement about the custody and visitation (parenting time) arrangements for children. After receiving an order from the Court to provide services, the DRCB will complete an evaluation of the family through a series of interviews and the review of collateral information regarding the family. A report is prepared and submitted to the Court with recommendations regarding what type of custody and parenting time arrangement would serve the child's best interests, along with additional recommendations for services which would enhance the family's functioning.

Can my child testify at the custody hearing to tell the court what he wants?

Children can testify at custody hearings, but it is exceptionally rare. In order to testify, a child must be "competent" to testify, meaning that the child must understand the difference between the truth and a lie, and must promise to tell the truth in court. However, even if a child IS competent to testify, children do not testify at custody hearings very often because most parents and attorneys think it would be too difficult for a child to testify in court in a custody case. Our team at Hollingsworth & Zivitz is very sensitive to the issue of putting children in difficult emotional situations, and accordingly, we keep children off of the witness stand at all costs. That being said, sometimes it is appropriate for a child to speak privately with the judge (not in open court, not in front of either parent or other witnesses to the custody hearing). Even this type of child involvement is not encouraged, for all of the same reasons of there being a strong preference to keeping the children out of the custody battle as much as possible. However, in certain circumstances, depending on the age and maturity level of the child as well as the specific issues alleged between the parents, a private conversation between the judge and the child may very well be appropriate.

How can my child speak to the judge privately?

In Indiana, it is possible for the judge to speak privately to a child to hear what the child's wishes are in a custody or visitation case. Courts can consider the wishes of a child when deciding custody, especially if the child is at least 14 years old. One way for the court to find out what the child wants is for the judge to speak to the child. Usually, one of the parents (or the parent's attorney) will ask the court to speak with the child privately. This is sometimes called an "in-camera interview." The court then decides whether or not to speak to the child. Whether or not the judge will agree to conducting an in-camera interview with the child depends on any number of factors, including the allegations made between the parties, the age and maturity level of the child, etc. However, it is important to note that some judges feel very strongly that children should not be involved in the process whatsoever, and accordingly, are generally opposed to speaking with children for that reason.

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