At Ciyou & Dixon, P.C. we find litigants are often confused about the term, “custody”, what it means and the legal right associated with it. A good analogy is to think of a term known to almost all of us, such as a “tire”. We all know what it means?
If you run across a dealer in earth moving equipment and advise him or her you need to purchase four tires, we suspect, at least initially, two parties might as well be talking in different languages. Your tire for your SUV is probably about fifty pounds. To the earthmover, a tire might be the size of the SUV and weigh more than the vehicle itself does.
These significant distinctions exist as well with the term “custody.” We hope this blog post helps you understand some of the definitions and applications to make you more informed and helpful as a litigant in defining the objectives of your case. Information is paramount. Mis-information, on the other hand, is hurtful in many cases.
The following are the Biggies as it were of custody types and approximate meaning in Indiana legal parlance. How you reach these, if at all, is a factual-legal question to address with your counsel.
Physical Custody. Generally, this term is utilized to refer to the parent who has a specific agreement ordered by the court that they are the physical custodian. Under the presumptive application of the Indiana Parenting Time Guidelines, the other parent will receive 98 overnights and pay child support.
Legal Custody. Legal custody has nothing to do with there a child will live the majority of the time, such as with the physical custodian. Nor does it relate to parenting time. Instead, it addressed which parent will make the major life decisions for the child, including health, education, welfare and maintenance. For instance, will the child attend public or private school. Legal custody has nothing to do with routine and ordinary decisions, although litigants sometimes perceive it that way and litigate this way. For the most part, “custody” refers to physical custody, although not always. It can be joint. However, if a dispute arises, the parties go to court.
Primary Custody. This term is sometimes a legally diluted version of physical custody or an express reference to it. There is no precise meaning, other than the parent labeled as the primary physical parent will have more overnights with the child than the other parent. In some cases, this language is utilized to reflect the other parent’s time will be in excess of 98 overnights. It is softer language nevertheless and is a nod to and acknowledgment of the other parent’s rights to quality time with the child.
Sole Physical/Legal. A term that is somewhat in disfavor is “sole” as it relates to physical or legal custody. This term leaves little wiggle room. It is clearly indexes the child to one parent over the other. Sole physical custody would indicate 98 overnights and presumably nothing more. Sole legal custody would direct that one parent–and one alone–get to make the legal decision. That typically is not favored by the non-custodial parent.
Shared Parenting. Shared parenting is a term that comes up with physical custody with some frequency. This concept is probably a stronger term than primary custody and envisions more equal parenting time. Like primary physical custody, it is a acknowledgment of the other parent’s rights to be with his or her child.
Joint Custody. Although the times may vary a little less than equal, joint custody focuses more on the child spending approximately equal time with each parent, such as week for week or a few day rotation. This works in some cases with parents who get along. However, when the children start school this is problematic. It is also problematic if the parents live any distance and not in the same school system.
Grandparent Custody. This is really a misnomer. The United States Supreme Court decided under the Troxel case a biological parent’s right to parent his or her child is superior to that of a third party, such as a grandparent. As such, grandparents cannot seek custody over their grand children as a general rule. Under an Indiana statute, there is a provision for a grandparent to obtain some limited visitation time with his or her grandchild.
De Facto/Third Party Custody. While a natural parent has a legal right superior to a third party, if a third party can show he or she has reared the child and provided for the child’s needs when the parents have not, and a good reason is not present, the a third party, who is sometimes a grandparent, can seek to obtain custody as a de facto custodian. Generally, takes a showing of the equal of a year’s worth of care and the child is bonded with the caregiver. These are harder cases to establish than most other custody cases.
To reach agreement, get cases done, and avoid the dramas and traumas of trial, parties and their attorneys often come up with hybrid physical and legal custody terms that are permutations of the foregoing. Ultimately, any custody agreement or order is hinged on it being in the child’s best interests. An Indian court will not order it otherwise.
If this blog post has provided you with some background about the types and variations of custody in Indiana to make you a more informed legal consumer, it has met its goal. Ciyou & Dixon, P.C. advocates practice throughout the state.
