Indiana Divorce Law...

Indiana Law - Who Gets Custody?

The law in Indiana instructs the judge not to favor either parent in the granting of custody.

There is no express law either encouraging or discouraging joint physical custody as opposed to sole physical custody. In all cases, the judge will simply try to set up the custody situation that is best for the child.

There is a law in Indiana on joint legal custody if the judge believes that would be in the best interest of the child.

Factors the judge will consider in deciding about joint legal custody include:

• Whether the parties themselves agreed to joint legal custody.
• Whether each party is a fit and suitable parent.
• Whether the parties are willing and able to communicate and cooperate for the child's benefit.
• The wishes of the child, if the child is at least 14 years of age.
• Whether the child has a close and beneficial relationship with both parties.
• Whether the parties live near each other and plan to continue to do so.
• The physical and emotional environment in each home.

The Indiana laws do not mention anything about joint physical custody, where a child spends a roughly equivalent portion of time at each home.

Section 31-1-11.5-21(f),(g).

Cases:

Wilson v. Wilson (1999)

In this case, the father was a Jehovah's Witness, and the mother was not. The father was taking the child, who was about 9 years old, to Jehovah's Witness meetings.

The mother objected, pointing to a clause in the joint custody separation agreement calling for the mother to make the religious decisions, in spite of an arrangement that otherwise called for joint custody.

When the case was taken back to court, the judge found in favor of the father, despite the clause in the agreement, saying active involvement "in some religion is generally better than none."

On appeal, the court disagreed, saying that the parties' decision at the time of the signing -- that the mother should make all religious decisions -- should be final. The court also noted that the child had needed a tonsillectomy, and that the husband had attempted to tell the doctor that he would not consent to a blood transfusion.

Aylward (1992) 592 NE2d 1247 (court should not impose joint custody where parents had fought over child-rearing).

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