Among the most challenging issues of family law in Indiana is the child custody issue after divorce. The rule of Indiana states that a person under the age of 18 is considered a child. Separation usually causes severe stress to a child due to a change in the familiar home environment, a decrease in the time of communication with one of the parents, and hostility that often occurs between them. Therefore, family disintegration is closely related to the problem of creating conditions that will contribute to the full development of the child. The components of this system are parental love, consideration child interests, and the general psychological climate.
The basic principles of Indiana social policy include the recognition of the rights of a child to stay connected with both parents, to receive care and support, and to make decisions relying on the experience with both parents. The primary goal is not to deprive a child of these rights, even if the parents are getting divorced.
When determining the procedure for exercising parental rights after divorce, the courts of Indiana are guided by the category of child interests. The criterion of eligibility with the interests of the child does not put restrictions on the rights of parents to raise children as the process itself must be carried out primarily in the interests of the child. This is a universal legal criterion in determining the form and procedure for exercising parental rights since they must comply with the interests of both children and parents. The criteria for determining whether certain conditions correspond to the child interests differ in some states, and in Indiana it is:
the desire of parents to take care of a child;
the kid’s will to live with one of the parents (under the condition the court determines that he or she is old enough to give such preference).
Family courts in Indiana, considering the criterion of the child’s emotional connection with each of the parents, give preference to the parent who took the most care of the child during the period of living together as a family. It is crucial for the successful socialization of the child, including physical and mental development.
When deciding which of the parents cares for the child the most, the courts of Indiana focus on direct parental responsibilities, such as:
– hygienic procedures;
– ensuring the age and seasonality appropriate clean clothing;
– protecting health of a child;
– assisting with homework;
– teaching the child reading, writing and other skills.
The current legislation of Indiana states that mothers and fathers have the same rights to raise a child after a divorce. However, when deciding on with whom the child will live after the parents split, the courts consider the criterion of the kid’s age and sex. Generally, the preference is given to mothers if the child is young or female.
One of the most significant issues in the judicial practice is to define the procedure for exercising parental rights on the religious upbringing of a child when parents profess different religions. In dealing with such cases, the courts of Indiana will limit the rights of parents to the religious education of the child only in cases where the methods of Christian education cause actual substantial harm to the child.
The Fifteenth Amendment to the US Constitution equally protects the rights of both parents to raise their children, including after a divorce. However, in cases where the parents are not able to cooperate with each other or when one of the parents cannot exercise parental rights (due to mental disorder, alcohol or drug addiction, an act of violence against the child or for other reasons), the courts decide on sole custody of one of the parents.
As an option of parental rights exercise, sole custody is rarely used and is usually limited to situations in which one of the parents is unable to raise and take responsibility for the child. For instance, violence against a child and abuse of parental rights are grounds for depriving a parent of the exercise of parental rights, as the establishment of such a possibility or the absence of the right to visit a child creates conditions for further abuse.
Joint Custody Preference
Most Indiana lawyers believe that equal protection of the rights of parents to raise their children requires that the courts in resolving divorce cases decide on the joint custody if there are no insurmountable obstacles for this (for example, if one of the parents is a drug addict or suffers from alcohol addiction). The concept of joint custody has become widespread in the course of reforming Indiana marriage and family law. The court may establish a form of joint exercise of parental rights if it is in the best interests of the child.
The custody is of two types: legal and physical. Legal implementation of parental rights gives the parent the power to make long-term decisions on the upbringing of the child, regarding crucial aspects of life and development, including education, health treatment, and religious upbringing. A key element of physical care is the child’s stay with the parent who owns the rights to physical custody.
If the parents share joint physical and legal custody, they have equal mutual rights in raising a child: they participate equally in making decisions on raising a child and in relation to his/her life and development, evenly distribute the time each parent spends with the child, exercising daily care and taking responsibility for the child, including the right to live with the child. The bottom line is to give both parents not only equal rights and equal opportunities in raising a child but also equal responsibility. This form of joint implementation of parental rights is used quite rarely, both because of potential difficulties (emotional stress, violation of the child’s well-established mode of life) and the actual difficulties (two permanent places for the child to live).
More common is the joint legal exercise of parental rights, under which both parents have the right to make long-term decisions on the upbringing of the child, with the provision of the actual practice of parental rights to one of the parents. The joint use of parental rights is based either on the agreement of the parents or the decision of the court. Usually, when deciding on the joint use of parental rights, the court of Indiana invites parents to agree. This agreement should define the powers, duties and responsibilities of each parent in relation to the child, the range of issues on which parents should make joint decisions (related to education, treatment, religious education, summer holidays, methods of discipline, etc.), the procedure for making collective decisions, the process for amending the agreement and the system for settling disputes. If the court establishes the procedure for exercising parental rights, it is presumed that it is in the best interests of the child.
The court decides on the joint exercise of parental rights in the following circumstances:
– the ability of both parents to effectively cooperate on the upbringing of the child, i.e., parents must fulfill their duties as established by the joint custody agreement or the court decision;
– the existence of proper living conditions for the child to live with each of the parents;
– other circumstances that may be important for determining the best states in the interests of the child.
Opponents of joint physical custody believe that the child can suffer if the parents cannot cooperate. They think that joint physical custody is often not feasible (for example, when parents live in different states), and are concerned about the possibility of conflict between parents regarding the child.
Besides, the joint exercise of parental rights, providing the child with the opportunity to spend enough time with each of the parents, puts him/her in a situation where the child is forced to live in two houses and constantly move, which negatively affects the psyche and can cause stress. Overall, it seems that joint physical custody can be established only in exceptional cases when it is in the best interests of both the child and the parents, and also maintains and strengthens the favorable psychological climate between them.