Modification of Custody
How is custody determined?
In a divorce involving a child (or children), the custody of the child can be agreed to by the parties in a settlement or determined by the Court after a hearing. The Court must consider the best interests of the children and in the event of a settlement, must approve of the custody agreement. The Court has a wide amount of discretion to determine what is in the best interests of the child.
Can a custody order be changed?
Regardless of how custody is determined, custody orders are not irreversible. Indiana law provides for the modification of custody if the circumstances warrant a change. Indiana law states that a custody order may be modified if such a modification is 1) in the best interests of the child, and 2) there is a substantial change in one or more of the factors the court must consider in determining custody.
Can I agree with my ex-spouse to modify custody?
The easiest way to modify custody is by agreement. This occurs when the parties reach a mutual decision that changing custody from one parent to the other is in the best interests of the child. In this circumstance, the parties would enter into an agreement providing for the modification of custody, and that agreement would be filed with the court for review and approval. Even if the parties agree to a modification, the Court may choose to hold a hearing so the parties can explain why they believe modification is in the best interests of the child.
What if my ex-spouse does not agree to change custody?
The more common method by which custody is modified is when one parent does not believe it is in the best interests of the child for the other parent to have custody. The party seeking the change of custody files a petition with the court alleging that there has been a substantial change in circumstances warranting a modification of the Court's prior custody order. The Court will then schedule a hearing and the parties will present evidence to support their respective positions.
What is a substantial change in circumstances?
What precisely constitutes a "substantial change" is a challenging issue for individuals and Courts to assess. Custody cases are usually very complex. Factors that can lead a parent to seek a modification of custody are extensive. Common situations include allegations of physical or mental abuse, significant changes in the financial situation of the custodial parent, health issues of the parent or child, a contention that the home environment provided by the custodial parent is unsafe, or the relocation of the custodial parent. In short, one parent will seek to show that the other parent is not the best person to have custody of the child.
What should I consider before seeking a modification of custody?
If a custody modification is contested (meaning the other parent does not agree), then the parent seeking the change should be prepared for what will likely be a contentious hearing. Custody modification proceedings almost always involve allegations that the custodial parent is in some way not doing their job as a parent and/or is not providing a safe environment for the child. As a result, the decision to seek a modification of custody must be evaluated with the utmost concern for the emotional impact on the parents and child.
An Experienced Indianapolis Divorce Lawyer Provides Quality Legal Services
Contact the Indianapolis divorce lawyers at Hollingsworth & Zivitz, PC for more information on child custody and to discuss your best options. Hollingsworth & Zivitz, PC serves clients in the greater Indianapolis area including Carmel, Fishers, Westfield, Noblesville, and Hamilton County, as well as Zionsville, Avon, Brownsburg, and the counties surrounding Marion County.
