What is Joint Legal Custody?
Joint legal custody is a phrase commonly used in Indiana custody cases to denote the parents’ shared right to make decisions for a minor child, regardless of where the child lives the majority of the time. Often, clients confuse their parenting time with their legal custody of a child. Parenting time is defined in Indiana as division of timesharing with a child. In other words, the times that a child spends with a parent is referred to as his or her "parenting time." Whether a period of parenting time is described as parenting time does not, however, depend on the right to make decision-making for the child. That right belongs to the parent(s) with the legal custody of the child. Therefore, the distinction between parenting time and legal custody is important. A parent can have the majority of parenting time but not the legal custody, or vice versa. It is a misconception that whoever has the most parenting time automatically has the most rights. A parent can have sole legal custody of a child, or both parents can share that right to make decisions. Sole legal custody means that one parent alone has the right to make major decisions for the child. Joint legal custody means, essentially, that both parents have an equal right to say who the child will see, what doctor the child will see, where the child will go to school , etc. Both parents need not be in agreement on these issues; instead, it is up to a judge, or the parties if they can work it out, to make the decision. Indian law favors joint legal custody. Unless the child’s parents are found to be unfit, have a history of domestic violence, or cannot communicate effectively to make joint decisions, Indiana courts want to see both parents on redistrict until the age of eighteen. However, a parent with sole legal custody can limit the other parent’s access to certain decisions, such as by including restrictions on the ability to consult the child’s doctor. For example, if you have sole legal custody of your child, and the other parent has limited parenting time with the child, you do not have to let the other parent go to the child’s doctor visits with the child while he or she is with you. You don’t have to call the other parent about routine updates from the doctor. You do, however, have to include the other parent in expedited decisions concerning your child, such as the need for immediate medical treatment for illness or injury. It is critically important for parents to understand the terms of their legal custody arrangement. It may be in your best interest to be awarded joint legal custody of your child, even if parenting time and physical custody are awarded differently.
Indiana Joint Legal Custody Laws
The State of Indiana has established its family law and child custody guidelines through a series of statutes that apply to all counties in the state. These statutes govern how Legal Custody is awarded to parents, as well as how to determine the best interest of the child.
I.C.35-38-2.2.- Children’s bill of rights:
(a) In a proceeding, upon request, the court shall issue an order that children of the state have the right to:
- (1) A meaningful relationship with both parents;
- (2) Frequent and continuing contact with both parents;
- (3) Enjoy parenting time with each parent that is consistent with Indiana’s parenting time guidelines, unless:
(A) The parenting time is not feasible; or
(B) Parenting time is waived by agreement of the parties;
- (4) Share in and know about family background and heritage;
- (5) Be free from parental actions that are harmful or potentially harmful such as family violence, child abuse, neglect, substance abuse, or criminal activity;
- (6) Have privacy and protection of personal records, including medical, dental, and academic records, unless disclosure is authorized by law or the child consents;
- (7) Receive equal treatment of parents in parenting time, child support, transfers of custody, and legal proceedings regardless of the sex of the parent;
- (8) Be free from discriminatory treatment based upon the age or sex of the child, or based upon the marital status of the child’s parents;
- (9) Be free from being used as a tool by either parent, or others, to harm the other parent, or have harm done as a result of interparental conflict;
- (10) Be free from (A) being placed within a household or residence not protective of a child, or (B) being subject to heavy emotional dependence or behavior control by a parent;
- (11) Be free from abuse by either parent; and
- (12) Be consulted in parenting decisions to the extent the child is able to intelligently do so.
(b) In a proceeding, upon request, the court may issue an order that children of the state have the right to in a proceeding:
(1) Participate in family counseling or educational programs that foster development and support relationships with both parents; and
(2) Maintain contact with siblings regardless of the living arrangements of the children and siblings.
Factors Indiana Courts Analyze for Joint Legal Custody
To grant joint legal custody, Indiana courts take into consideration what is in the best interest of the child. When determining a child’s best interest, courts look at a number of factors. According to Indiana Code 31-14-13-2, these factors are:
- (1) the age and sex of the child;
- (2) 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;
- (3) the interaction and interrelationship of the child with:
(A) both parents;
(B) siblings; and
(C) any other person who may significantly affect the child;
- (4) the child’s adjustment to home, school, and community;
- (5) the mental and physical health of all individuals involved, including any history of domestic or family violence;
- (6) evidence of a pattern of domestic or family violence by one (1) parent against either the other parent or the child; and
- (7) which parent is more likely to allow the child frequent, meaningful, and continuing contact with the other parent.
In Indiana, the right to joint legal custody or joint physical custody does not require substantial or significant contact with the child in either parent’s residence.
Benefits and Disadvantages of Joint Legal Custody
On the positive side, joint legal custody gives parents the ability to maintain a relationship with their child, allows them a voice in major decisions, and helps them work together as a parenting team. It also fosters a sense of stability for the child and an ability to norm teach and practice conflict resolution skills.
On the negative side, a joint legal custody arrangement can put both parents at risk of conflict . If the parents cannot communicate effectively on a consistent basis, the process can lead to very high levels of stress, arguing, and resentment. This can be particularly true if one or both parents tend toward vindictiveness. Sometimes, parents fear that they may be undercut by the other parent in the decision-making process. Joint legal custody may also prove stressful for children if they feel caught between the parents, or if one parent punishes them for expressing their opinions.
Changing Joint Legal Custody Agreements
Modifying Joint Legal Custody Agreements in Indiana
Over time, circumstances may change, which necessitate a modification of a legal custody arrangement. In Indiana, either parent can request a modification of the custody order by filing a petition with the court that issued the original joint legal custody determination. The petition must state why the change is in the best interests of the children and include any pertinent evidence to support the modification. The court will review the petition and may set a date for a hearing to give both parents the opportunity to present their case.
Upon receiving the petition and any accompanying evidence, the judge will consider the best interests of the children as well as any relevant state laws or regulations. The judge may question both parents separately and ask them to testify under oath regarding their parenting skills and capabilities. Additionally, the judge might evaluate each household environment to ensure that it is capable of sustaining a safe and healthy living situation for the children.
The parties involved may also be referred to and required to meet with a mediator to help them resolve their custody issues. If the parents are able to reach an agreement during mediation, a finalized settlement will be submitted to the court for approval. If not, a court date will be set to finalize the order. It is important to note that the judge will make a final decision only after hearing from all parties involved. Changing the order in their best interests, however, remains the final consideration.
If successful in obtaining a modification from the court, this will be required of both parents, regardless of whether they consented to the modification. An appeal can be made if a particular party or member disagrees with the ruling, but this can take years and incur a substantial cost regarding both time and funds.
Help and Resources for Parents
Navigating the complexities of joint legal custody in Indiana is often a daunting task for parents, especially those who are unfamiliar with the legal system. To ensure the best possible outcome for both parents and children, it is crucial to seek professional legal advice tailored to your specific circumstances. This section outlines the available resources and services for parents in Indiana facing joint legal custody issues.
First and foremost, parents are strongly advised to seek representation from a qualified family law attorney who specializes in child custody disputes. Such attorneys can help navigate the often murky waters of Indiana’s custody laws and serve as effective advocates in and out of the courtroom. Lawyers can provide a clear explanation of your rights and responsibilities under the law, assist you in drafting relevant documents, and represent you during negotiations or court proceedings. To find a skilled Indiana family law attorney, consult local bar associations, online lawyer directories, and recommendations from trusted friends or family members. For those unable to afford legal representation, several organizations offer low-cost or no-cost legal guidance related to divorce and child custody matters. Indiana Legal Services provides free legal representation to eligible low-income Hoosiers, while the Volunteer Lawyer Program of Northwest Indiana matches low-income parent with private attorneys willing to work on a pro bono (free) basis . Additionally, the Indianapolis Bar Association hosts a Public Outreach and Education Committee which organizes seminars and other educational resources for the public. Inquire at your local Circuit Clerk’s office about additional service organizations available statewide and in your area. The Indiana Supreme Court’s website also offers information on resources specific to custody situations. For further information, visit the Indiana Supreme Court Self-Service Portal (https://selfservice.in.gov). Through this resource, parents can access forms for custody disputes, child support issues, and other matters that frequently arise during the process of establishing child custody and parenting time.
Beyond legal resources, parents should not overlook the importance of mental health and wellness for both themselves and their children during a joint legal custody dispute. Counselors and psychologists can help identify behavioral or emotional issues that may be exacerbated by the stress of child custody cases. Many therapists have extensive experience working with children and parents involved in highly contentious custody battles. Support groups, community resources provided by hospitals and health care clinics, and services offered by religious institutions can be helpful as well. This information provided in this section is meant to detail the resources on the internet and in your community that parents may be able to access. A knowledgeable family law attorney can help you to find more organizations that can assist you and your family.