Under law, parents have legal custody of their child without the necessity of a court order. However, when parents divorce, seek legal separation, or seek the establishment of paternity, a court must decide who to vest legal custody with. In Indiana that could be either parent, both parents, or some third party custodian. First and foremost in such determinations is the best interest of the child. When parents can’t agree on custody arrangements, the Court must decide who shall be awarded custody in accordance with numerous factors, but always chief among those factors is what’s in the best interest of the child.
The court must consider the following factors: Age and sex of the child, the wishes of the child’s parents, the wishes of the child, with more weight given to the child’s wishes if the child is at least fourteen (14) years of age. The interaction and interrelationship of the child with: the child’s parents; the child’s sibling; and any other person who may significantly impact the child’s best interests. The child’s adjustment to the child’s: home; school; and community. The mental and physical health of all individuals involved. Evidence of a pattern of domestic or family violence by either parent. Evidence that the child has been cared for by a de facto custodian, and if the evidence is clear and convincing, the court shall consider the factors as it relates to defacto custodians. In order to make this determination, Courts often consider the input of qualified experts who are called upon to evaluate children and their families for purposes of determining what is in the best interest of the child.
This evaluation typically results from one or both parties filing a motion with the court seeking such an evaluation, but it could be requested from the court itself. In any event, judges often rely on those findings in reaching their custody decisions. There is no presumption that one sex or the other is the more suitable parent for purposes of awarding custody. However, among the factors a judge should consider in arriving at his or her custody decision, is the age and sex of the child. It would seem impossible for those two factors to be considered in any traditional sense without favoring one sex over the other between the parents.
Custody modification requires proof that there has been a substantial and continuing change in one or more of the statutory factors to be considered in a custody award, and that the prior order is no longer reasonable. The statute also forbids consideration of factors known to be in existence at the time of the original custody award. Only newly discovered facts may be introduced to force a modification.