Parents who are separated from their spouse, divorced, or trying to establish paternity often worry about staying in their children’s lives.  If you are one of these parents you may be worried about how often you will see them, what impact you will play in their daily lives, or what part you will have in making major decisions.

People tend to lump all of these concerns under the umbrella term of custody.  Clients often tell me: “I want custody of the kids,” “I want a 50/50 split of custody,” or “I want sole custody of the kids.”  If you are going through a divorce or want to establish paternity of a child you need understand the difference between physical custody, legal custody, and visitation.

Physical Custody gives a parent responsibility for the physical care and supervision of the child.  Whomever is given physical custody is deemed the custodial parent.  The other parent is deemed the noncustodial parent.  By law there are certain default rights and responsibilities assigned to each parent; however, these defaults can be modified. In the end, custodial parents do not necessarily make all of the decisions for the child or determine how often the noncustodial parent will see the child.

Legal Custody is the right to determine the child’s upbringing including the child’s education, health care and religious training.  By default the custodian determines the child’s upbringing.  However, the court can award joint legal custody and the parents “will share authority and responsibility for the major decisions concerning the child’s upbringing, including the child’s education, health care, and religious training.”

Courts can award joint legal custody if it is in the best interest of the child.  In deciding on joint legal custody the court will look primarily at whether parties agree to joint legal custody and at these factors:

 

  • the fitness and suitability of each of the persons awarded joint custody;
  • whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
  • 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;
  • whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
  • whether the persons awarded joint custody:
    • live in close proximity to each other; and
    • plan to continue to do so; and
  • the nature of the physical and emotional environment in the home of each of the persons awarded joint custody

 

Visitation determines how often and for how long the noncustodial parent sees the child.  Visitation can last for as little as few hours or up to weeks at a time.  The parties can agree on visitation or the court can decide.  The Indiana Parenting Time Guidelines provide specific parenting time provisions for children based on things like the child’s age and the proximity that the parents live to each other.  If the parents or the Court want to deviate from these guidelines and give less than the minimum time provided by the guidelines they have to state in writing why it is necessary or appropriate.  To review the latest version of the guidelines you can go here: http://www.in.gov/judiciary/rules/parenting/