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Legal Information: Indiana

Indiana Custody

Laws current as of
August 2, 2016

This page includes information about custody that is specific to Indiana. There is also a page for general information that you may find helpful.

How will a judge make a decision about custody?

A judge will make a decision about custody based on what s/he thinks is in your child’s best interest. The judge will look at any factor that s/he thinks is important to make this decision.

According to Indiana law, when determining what is in the best interest of the child, the judge will look at:

  • The age and sex of the child;
  • The wishes of the child’s parent(s);
  • The child’s preference for who s/he wants to live with, giving more consideration if the child is at least 14 years old;
  • The relationship the child has with his/her parent(s), siblings and any other person that might significantly affect the child’s best interests;
  • The child’s adjustment to his home, school and community;
  • The mental and physical health of all individuals involved; and
  • Evidence of domestic violence by either parent;*

If before the custody case began, there was a non-parent who had been the primary caregiver and financial supporter of the child for a period of 6 months (for a child under age 3) or for a period of 1 year (if the child is 3 or older), this person could be considered what is called a “de facto custodian.” In this case, the judge would make the de facto custodian a party to the custody case and can consider the following facts:

  1. the reason why child was left with the de facto custodian (i.e., the parent went to school, work, etc).
  2. the de facto custodian’s relationship with the child and his/her custody preference.

The judge might even award that person custody if that is in the child’s best interests.**

* IN Code § 31-17-2-8
** IN Code §§ 31-17-2-8(8); 31-17-2-8.5; 31-9-2-35.5

Can a parent who committed violence get custody or visitation?

Possibly.  While the judge will consider any evidence of domestic or family violence by either parent, it is possible that a parent who has committed violence will get custody or visitation.*

However, if the other parent was convicted of a crime involving domestic or family violence that was witnessed or heard by child, the judge must assume that it is in the child’s best interest to order that parent to only have supervised visitation. The supervised visits would last for 1 to 2 years following the crime involving domestic or family violence or until the child becomes emancipated - whichever occurs first. The parent, however, can try to show evidence to the judge to change the judge’s mind and ask that the visits not be supervised. As a condition of granting the noncustodial parent unsupervised parenting time, the judge may require the noncustodial parent to complete a certified batterer's intervention program.**

It is recommended that you seek legal advice from a lawyer to assist you in a custody case involving domestic violence issues. For information on how to find a lawyer see our IN Finding a Lawyer page.

* IN Code § 31-17-2-8(7)
** IN Code § 31-17-2-8.3

If my child was conceived from rape, can the offender's rights be terminated?

Yes. If your child was conceived as the result of rape, you can file a petition with the juvenile court or probate court to terminate the parent-child relationship between the child and the offender.* However, if you were 18 or older when the rape occurred, you have to file the petition for termination within 180 days after the birth of the child. If you were under 18 when the rape occurred, you have to file the petition within 2 years after you turn 18 (so, before your 20th birthday).** The judge can grant the petition terminating the offender's rights if the judge believes that it is in the best interests of the child to do so.***

* IN Code § 31-35-3.5-3
** IN Code § 31-35-3.5-4
*** See IN Code §§ 31-35-3.5-5; 31-35-3.5-6

What happens to a parent's visitation rights when s/he is deployed?

If a parent who is in the military gets deployed, s/he can ask the judge to temporarily give his/her parenting time to a person who has a close and substantial relationship with the child if the judge believes it is in the best interests of the child. The temporary arrangement would end automatically when the parent returns from deployment.*

* IC § 31-17-2-21.1(a),(b)

Should I start a court case to ask for supervised visits?

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).

However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time -- and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to IN Finding a Lawyer to seek out legal advice.

Where can I find more information on custody in Indiana?

Indiana Legal Services has:

  • General information about custody in Indiana, including the factors a judge will consider when deciding custody and an explanation of joint custody;
  • Information on modifying a custody order
  • General information about visitation in Indiana; and
  • Much more information about custody in Indiana here, including who has custody if there is no custody order and whether or not a child can testify in court.

The Indiana Courts website has information on parenting time guidelines.  The website does not provide forms online for filing custody - however, they do have related forms regarding child support and divorce here.