Who has custody of a child if there is no court order in Indiana?

blog home Child Custody Who Gets Custody in Indiana if the Parents Are Not Married?

By James Emerson on July 7, 2021

Many people have children and choose not to get married for a variety of reasons, ranging from a lack of romantic interest to personal preferences regarding relationships. Whatever the parents’ reason, raising a child outside of marriage can create some confusion regarding custody rights. If both parents are together and happily cohabitating, custody may never be an issue. However, if there is a breakup, then the question of custody may lead to a contentious legal battle. It is important for Indiana parents to understand their rights in family court and to work with an experienced Carmel family lawyer to ensure they do not receive an unfair custody deal.

What Are Parenting Rights?

“Parenting rights” is the broad term for the legal rights of parents to be involved in their child’s life. Once a child is born, the mother is automatically awarded parenting rights, or maternity, in Indiana. For a father, paternity is only automatic when he is married to the child’s mother at the time of birth, when the child was born within 300 days of the parents’ divorce, or by the parents completing a paternity affidavit. If the parents were never married, then only the mother will have parenting rights unless the father can establish paternity in court.

Do I Need to Establish Paternity?

Establishing paternity ensures that a father can get custody or parenting time with his child in the event of a breakup, as well as ensuring that the child can receive health insurance, inheritance, and other benefits from the father. Without establishing paternity, you will have no legal right to be a part of your child’s life, and the mother will have both primary legal and physical custody. Even if you are on good terms with the child’s mother, by establishing paternity you guarantee your legal rights to see and take care of your child in case your relationship with the mother ever turns sour.

Paternity can be established in two ways:

• Paternity Affidavits: Both parents can voluntarily establish paternity by signing an affidavit that declares both the mother and the father as the child’s parents. This agreement can be signed and submitted to the State at the hospital within 72 hours of the child’s birth, or at any time before the child is legally emancipated (the child’s 18th birthday) if there is no father listed on the birth certificate. If either parent disagrees with the affidavit, then they must go through a court order to establish paternity. Either parent can also request a DNA test before signing an affidavit.
• Court Order: Either parent may go to court to ask a judge to establish paternity. Doing so will not only establish the father’s right to custody, but also either parent’s right to child support. These cases can be uncontentious when both parents agree on paternity or contentious when one side disputes paternity. A judge will hear all evidence from both sides, which may include a DNA test, before making a decision.

Do I Have to Take a DNA Test?

You only have to take a DNA test if you, the other parent, or a judge requires it before establishing paternity. The State of Indiana does require fathers to take DNA tests at a state-approved laboratory and does not accept at-home or unapproved tests.

How Do Indiana Courts Decide Custody?

Indiana family courts prefer for both parents to be involved in their child’s life to ensure the child grows up in a healthy environment. However, the court’s primary goal is to make sure the child’s best interests are upheld, meaning it will adjust custody rights if it feels that one parent is unfit to take care of the child. Charges of child abuse, domestic violence, felony convictions, substance abuse issues, alienation, and contempt of court can all drive a court to take away a parent’s right to custody.

Indiana also prefers for parents to work together to create custody plans and settle any disputes out of court. If you can show that you and your child’s other parent can conduct yourselves professionally and will work together to uphold a custody plan, the court will take a hands-off approach unless necessary.

Our Carmel family law attorneys at Emerson Divorce and Accident Injury Attorneys, L.L.C., believe in standing up for parents’ rights in challenging custody cases. We know you wish to maintain your relationship with your child, and we are prepared to advocate for your interests before a judge. If you need legal representation in a Hamilton County family law case, reach out to our firm at (317) 969-8000. We can sit down with you in a free initial consultation and explain your rights.

Parents who separate or divorce must make tough decisions about custody. Parents can reach their own custody agreements or leave custody decisions up to a judge. When custody issues are presented in court, judges will base custody decisions on a child's best interests.

This article provides an overview of child custody in Indiana. If after reading this article you have questions, contact a local family law attorney for advice.

Overview of Indiana Child Custody Laws

A judge will decide two types of custody in your case: physical and legal custody. "Physical custody" refers to where the child physically resides, and the day-to-day care the child receives, such as bathing, meal preparation, and transportation. Parents can share physical custody equally or can arrange it so that one parent has primary physical custody, while the other has visitation.

"Legal custody" concerns a parent's right to make important decisions in a child's life, such as educational, cultural, medical, and religious decisions. Parents can share legal custody or one parent may have sole legal custody. A child's best interests are at the heart of any custody decision in Indiana.

Understanding a Child's Best Interests in Indiana

When judges face disputes about custody, Indiana custody laws requires them to apply a list of several factors to decide what's in the child's "best interests." Neither parent enjoys a custody preference and mothers and fathers are on equal footing when it comes to custody. The factors include:

• the age and sex of the child
• each parents' wishes
• the child's wishes, particularly if that child is at least 14 years of age (judges sometimes meet with children privately to ask about this)
• the child's interaction and interrelationship with his or her parent(s), siblings, and any other person who may significantly affect the child's best interests
• the child's adjustment to home, school, and community
• each parent's physical and mental health
• the child's health, medical, and emotional needs
• evidence of a pattern of domestic or family violence by either parent, and
• evidence that the child has been cared for by a "de facto custodian" (someone who is providing care but doesn't have legal rights to the child).

Indiana Joint Custody Awards Versus Sole Custody

A judge may grant parents shared custody, also called "joint custody." Parents can share physical and/or legal custody. For example, a judge may award the parents joint legal custody but one parent may receive sole physical custody. Alternatively, parents can both be awarded joint physical custody.

In a joint physical custody arrangement, the parents may have significant time with the child, but not necessarily equal. An example of a joint custody arrangement is where one parent has the child 3 nights per week and the other parent has the child 4 nights per week.

Essentially, a "joint" custody award means the parties will share custody to some degree. But a "sole" custody award means that one parent is given all or most rights.

How Do Courts Decide if Legal Custody Should Be Sole or Joint?

A judge will award joint legal custody only if it's in the child's best interests. If parents want joint legal custody, it's very important that they show they're able to get along with one another. To decide whether to award legal custody to one or both parents, the court will look at some additional factors, including:

• each parent's fitness and suitability
• whether the parents are willing and able to communicate and cooperate in advancing the child's welfare
• the child's wishes, with more consideration given if the child is at least 14 years old
• whether the child has established a close and beneficial relationship with both parents
• whether the parents live in close proximity to each other and plan to continue to do so, and
• the nature of the physical and emotional environment in each parent's home.

It's important to know that just because a court awards two parents joint legal custody, it doesn't mean they will be awarded shared physical custody. In Indiana, many custody awards grant the parents shared physical custody, while still allowing one parent sole physical custody. The type of custody awarded in your case will depend on what's in your child's best interests.

What Does Joint Legal Custody Mean in Indiana?

"Joint legal custody" refers to parents' rights to make major decisions on the child's behalf. When parents share legal custody, they have an equal say in matters involving the child such as where the child goes to school, medical treatment and care, and whether a child should be baptized in a certain religious faith.

Disagreements are bound to arise in joint legal custody arrangements. When they do, the custodial parent will have the final say. A judge will designate one parent as the "custodial parent" and the other as the "noncustodial parent". The custodial parent is typically the one who spends more time with the child.

Indiana Parenting Time

Under the Indiana child visitation guidelines, each parent is entitled to regular time with his or her child. "Parenting time," also known as visitation in other states, is the time that parents without physical custody spend with their children. In Indiana, a parent who doesn't have physical custody of a child is still entitled to reasonable parenting time with the child, unless the court holds a hearing and decides that parenting time would endanger the child's physical health or "significantly impair" (cause major harm) to his or her emotional development. For more information about parenting time and visitation, The Indiana Judicial Branch has published The Indiana Parenting Time Guidelines.

Even in situations where a parent has substance abuse or anger management problems, a court will try to facilitate visitation. In these cases, a judge may follow the supervised visitation guidelines in Indiana. When it's clear that traditional parenting time would endanger the child's physical health or significantly impair emotional development, a judge may order "supervised parenting time" until the situation improves, which means that all visitation must be supervised by a third party.

The court may order a social service agency, juvenile court staff, or a private agency to be present during parenting time to ensure that its safe and healthy. It's also common for the parties to agree to have parenting time supervised by a trusted individual, like a grandparent. The court can also order parenting time to occur at a secure, neutral location. See Ind. Code § 31-17-4-1 (2020.)

What Happens When Parents Disagree on How a Child Is Being Raised?

Under Indiana custody laws, it's not always necessary to go to court to resolve a custody dispute. Sometimes your custody order will resolve the dispute by giving the custodial parent the final say. Other times parents are able to work out a mutually satisfying settlement of their custody issues with a mediator's help.

However, when parents absolutely can't agree about what's best for their child, they'll need to go to court. Child custody cases in Indiana are tried before a judge who will decide the case without a jury. Judges sometimes get help when they're making custody decisions. They can request reports from neutral outside entities, like custody evaluators, court-appointed guardians, and social service agencies.

Judges also have the power to order counseling for kids who are having trouble coping. A judge will follow the Indiana parenting guidelines and issue a written order or "decree" with the final decision.

How to Modify Custody or Parenting Time

Yes. If you want to make changes to a current custody or parenting time order in Indiana, you'll need to file a motion to modify (change) custody or parenting time and prove to a judge that there has been a change of circumstances, which warrants changing the existing arrangements.

The court will schedule a contested hearing on the motion. However, a judge won't modify custody unless the child is endangered or a change would serve a child's best interests. See Ind. Code § 31-17-4-5 (2020).

If you have questions about custody or modifying custody orders, you should contact an experienced family law attorney for help. Additional resources and help is available through the Indiana Self-Service Legal Center, Family Legal Resources.