The family dynamic is something that is always changing, and there is certainly no “standard” or “normal” family. After a divorce or a final determination in a paternity case, often one parent of a child has what is called primary physical custody, and the other parent (the “non-custodial parent”) has what is called parenting time. The terms of the non-custodial parent’s parenting time may take many different shapes, but in general, if the parents cannot agree, courts often look to the Indiana Parenting Time Guidelines to make a determination on parenting time. The Indiana Parenting Time Guidelines prescribe several different arrangements depending on the age of the child and other factors, such as the physical distance between the parents’ residences, but in general, for a child five (5) years or older, a non-custodial parent may exercise parenting time on alternating weekends, plus one evening per week, plus one-half of the child’s school summer vacation.1 Sometimes this parenting time may be less and sometimes may be more. Regardless, often non-custodial parents want more time with their children, and such a parent may think that he or she wants to have a court change the custody arrangement so that he or she is now the custodial parent. While there are circumstances where that may be appropriate, this blog explores why it may be a better strategic move to ask for a modification of parenting time rather than a change in primary physical custody.
An important concept: the difference between custody, parenting time, and visitation. The concepts of custody, parenting time, and visitation may often be confused, so as a preliminary matter, it is important to learn what each of these terms actually means on a practical level under Indiana law. Custody over a child has two parts: legal and physical. Legal custody means who makes decisions for a child until the child reaches adulthood with respect to important upbringing issues – primarily religion, education, and medical care. Physical custody refers to where a child lives. Often, when a married couple who are the parents of a child divorce, one parent will receive primary physical custody, and the other will get parenting time which usually includes overnight stays. Consequently, physical custody and parenting time go together – when one parent gets primary custody, the other has parenting time.2 Visitation, contrarily, is simply a time when a non-parent spends time with a child, such as a grandparent awarded Grandparent Visitation.
The statutory requirements for a change in parenting time are different than for a change in custody. Now that we’ve clarified the difference between custody and parenting time, let’s look at what Indiana statutes require for a change of parenting time versus a change in custody. For a change in parenting time, Indiana law provides that:
The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child.3
Note that the court does not have to extend or decrease parenting time rights based on such a showing, but it may. That’s all one has to do statutorily to have a chance to obtain more parenting time with their children. Now, let’s compare that standard to what is statutorily required for a change in custody. The court can only modify a child custody order if:
[M]odification is in the best interests of the child; and there is a substantial change in one (1) or more of the factors:
- The age and sex of the child.
- The wishes of the child's parents.
- The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
- The interaction and interrelationship of the child with:
- the child's parents;
- the child's siblings; and
- any other person who may significantly affect the child's best interest.
- The child's adjustment to home, school, and community.
- The mental and physical health of all individuals involved.
- Evidence of a pattern of domestic or family violence by either parent.
- Evidence that the child has been cared for by a de facto custodian.4
If these conditions are not met, then an Indiana trial court cannot modify custody. Comparing these two statutory requirements, one can see that it is much less difficult to meet the threshold requirements of a change in parenting time than to modify a custody order. While there may be times when seeking modification of custody is appropriate, the option to simply move for a change in parenting time by a non-custodial parent should always factor into the analysis as to how to move forward to reach a desired outcome.
Additional considerations as to why a modification of parenting time may be more appropriate than a custody modification. In addition to the extra statutory hurdles that one must overcome in seeking a custody modification, practical considerations also show why a parenting time modification may be a more efficient route to help you reach your goals of spending more time with your child(ren). First, a trial court is unlikely to up-end the status quo of a custody arrangement unless there is strong evidence of a change in circumstances and it truly is in the child(ren)’s best interest to have a custody modification. After all, there was probably a reason that the trial court ordered one parent to have primary physical custody in the first place, so a parent moving for a custody modification is going to overcome whatever led the court to rule that way in the first place. Further, a full modification of custody usually involves tangential changes in a child’s life that the court may not want to initiate. For example, if a custody modification is awarded, will the child have to move residences? Change schools? Leave behind friends or access to close family members? Remember, in general, the question at the forefront of any analysis is “what is best for the child?”
Second, asking for a change in parenting time as opposed to custody is much less likely to begin a contentious situation between you and the custodial parent. A custodial parent may be much less likely to litigate an issue of increased parenting time and may even agree to such a modification. However, if you are truly requesting to modify custody, you are asking a court to reduce the other parent’s custodial rights, and more often than not, the matter will have to be heard by the court at a hearing which will likely result in contention between the parties and additional expense in legal fees and time.
Ciyou & Dixon, P.C. advocates handle modification cases in family law matters throughout the state. We hope this blog post helps you consider your options if your goal is to seek more time with your children or if you are a custodial parent who anticipates a parenting time or custody modification challenge from your child’s other parent. This blog is written for general informational purposes and is not intended as legal advice or a solicitation for services. It is an advertisement.
- Holidays are also typically divided. See Ind. Parenting Time Guidelines, § II, Part D.
- This can deviate greatly and is just used to illustrate these concepts.
- Ind. Code § 31-14-14-2.
- Ind. Code §§ 31-14-13-6, 13-14-13-2.