We quite frequently receive questions and complaints from clients regarding the other parent’s misconduct towards them or interference with their parenting time. These complaints tend to be followed with the question “can I modify physical custody?” Unfortunately, there is no hard and fast rule that can provide a ready answer to the question. Each custody case is unique, requiring an independent legal analysis. However, in this blog, we provide a quick overview of custody modification and when a parent’s misconduct or interference may rise to the level to modify custody.
It is important to note that in Indiana, child custody modification is governed by statutory code.1 Pursuant to the relevant statute,2 in order to modify custody, a parent must show: 1) modification is in the best interests of the child(ren); and 2) there has been a substantial change to one of the enumerated factors listed in Indiana Code section 31-17-2-8.3 In particular, there are eight different factors listed in Indiana Code section 31-17-2-8 that Court’s consider, as well as anything else that impacts child custody and the child’s best interests. What is important to remember, however, is that courts have consistently held that it is the child(ren)’s best interests that controls.
With a basic understanding of the standard for modification and the variables that may exist and the court may consider, we can now turn our attention to the particular question of one parent’s misconduct or interference is sufficient to modify custody. The general rule is that a custodial parent’s general lack of cooperation or isolated acts of misconduct cannot serve as a basis for custody modification.4 The reason for this is there is a judicial preference for permanency and stability which is upset when physical custody is modified. Notwithstanding, if one parent can demonstrate that the other has committed misconduct so egregious that it places a child’s mental and physical welfare at stake, the trial court may modify the custody order.5 For example, a parent’s false allegations of child abuse against another parent could be sufficient to support a custody modification.6 On the other hand, a few instances of parent’s denial of another parent’s time with the child will likely be insufficient, in and of itself, to support a modification of custody.7
Ultimately, whether you, or someone you know, can modify custody based upon another parent’s misconduct or interference with parenting time is going to depend on the unique facts and circumstances of the case—and how they are developed into a cohesive trial theme. This is where you and your lawyer have to paint the picture to the judge how misconduct is really negatively impacting the child. These types of proceedings are extremely fact sensitive, thus often leading to confusion among many attorneys and litigants. Not to mention, these are very personal and emotional matters for parents who may struggle to identify the pattern without skilled representation. When issues become so serious that modification of custody may be necessary, it may be helpful to seek the assistance of an attorney to help navigate through the process. Ciyou & Dixon, P.C. attorneys handle domestic cases throughout the State of Indiana and understand the significance of custody modification and planning needed for a successful case presentation. This blog is written for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.
- Ind. Code 31-17-2 et. al.
- There are mirror statutes in the Paternity and Divorce Acts.
- Ind. Code 31-17-2-21.
- Maddux v. Maddux, 40 N.E.3d 971, 979 (Ind. Ct. App. 2015)
- Montgomery v. Montgomery, 59 N.E.3d 343 (Ind. Ct. App. 2016). However, several acts of misconduct may constitute a pattern and collectively amount to a substantial change. This is a careful analysis conducted by all skilled domestic attorneys.