In Indiana, there are two kinds of child custody: Legal Custody and Physical Custody.
Legal Custody is defined as persons sharing authority and responsibility for major decisions concerning the child’s upbringing, such as the child’s education, health care, and religious training. I.C. §31-9-2-67.
Parents can have joint legal custody or sole legal custody of a child. When parents have joint legal custody, neither party can simply make decisions regarding the child’s education, health care, or religious training without first discussing the decision with the other parent. If the parents cannot agree, for example, to start homeschooling a child rather than leave them in the traditional school, the parents can seek mediation or direction from the court to help them make the decision. However, should one party have sole legal custody of the child, he or she can make such decisions without the agreement of the other parent, but, the legal custodial parent still must inform the other parent of the change.
Physical Custody is the physical care and supervision of a child. I.C. §31-21-2-16.
This is the type of custody that most people automatically think of when asked who has “custody” of a child. There are a variety of different physical custody arrangements. Sole physical custody, joint physical custody, and primary physical custody.
When parents have joint physical custody, this typically means that they each have equal time caring for and supervising the child. This might mean that the child spends one week with a parent and then the next week with the other parent. It could mean that the child alternates houses every four days or every month or every two weeks. Sole physical custody of the child typically still includes some amount of parenting time with the other parent, but not very much or it may even be supervised. Primary physical custody often results in the child living with one parent most of the time; possibly staying with the other parent every other weekend.
If parents can’t agree about whether they will have joint or sole legal/physical custody of a child, the parents can either go to mediation or allow the judge to decide. In highly contentious situations or when there are accusations of abuse, neglect, substance abuse or other concerning behaviors by one or both of the parents, the judge will make a determination based upon what is in the best interest of the child.
A judge’s decision regarding the custody of the child may not be permanent. Situations change and people change. A parent who wasn’t awarded legal custody of their child may ask the court to modify his decision at some future point. For example, if one parent had a serious substance abuse problem but then works very hard to make any and all necessary changes in his life to eliminate that issue, a court can decide to modify custody from sole legal custody to joint legal custody as it might now be in the child’s best interest to have both parent’s making decisions for the child. The opposite scenario may be true as well. For example, both parents share joint legal custody of the child, but one parent starts exhibiting behaviors that are concerning and potentially dangerous to the child. A parent can move the court to modify custody from joint legal custody to sole legal custody as it might be in the best interest of the child.
Custody issues can be very complex and oftentimes require the assistance and advice of a knowledgeable and experienced attorney.