Indiana trial court judges are tasked with the duty to make sure that at the time of divorce (or paternity) adjudication the children’s best interests are met. If the parents have an agreement on custody and it is not contested, they may infer that agreement of the parties is in the children’s best interests. However, where physical and/or legal custody is contested, there are four key ways a trial court judge determines what is in a child’s best interests. Most of the time litigants with their lawyers have the ability to choose or have input on the way the evidence will be provided to the court. These options are discussed in this blog post.
Child as a witness. Although rarely done, the is no bar in the Dissolution or Paternity Act, nor Indiana Rules of Evidence generally to calling a child as a witness.1 Nevertheless, it is not normally a tool utilized in trials by attorneys or judges because it puts the child squarely in the middle to testify before both parents and the judge may not follow their wishes because it is not in the child’s best interests. This creates a scenario where a child who has given testimony against one parent may be living with him/her. Generally, this is frowned upon by the court. Nevertheless, every divorce case is different, and your case may be the case where it is legally prudent to call your child as a witness. While rare, particularly with children who are 16-17 this is done.
In-chambers interview: Closely related is having a child interviewed by a judge in his or her office (chambers). This is usually done with the attorneys present but is not done in front of the parents. Ultimately, how many judges handle this situation is to build a rapport with the children and then generally talk about their parents without directly asking the child who they want to live with. Judges are skilled at learning this by inferences and assumptions of what the children may say to them. Some attorneys are against this process because there is often no official record to use to appeal if the in-chambers is unsuccessful in your custody request.
GAL/CASA evaluation and report. In the divorce and paternity act, there are provisions, for the court to appoint a Guardian ad litem or Court Appointed Special Advocate to interview and interact with the children and family make a recommendation to the court of what is in the children’s best interests for physical and legal custody. Ordinarily, the parents have to pay for some part of these services. The GAL/CASA is charged with making a recommendation in the children’s best interests to the court in a written report and then testifying in court. The Court ordinarily follow GAL/CASA’s recommendations but do not have to. A significant drawback to GAL/CASAs is their inability to conduct psychological testing, such as MMPI. Where there is a significant mental health issue, suspected, a forensic psychologist may be the best legal resource to address the children’s best interests and the only source to pick up significant mental health issues that impact the children’s best interests.
Forensic clinical psychologist. The final tool, which operates essentially the same way as the GAL/CASA, is to request the court to order a forensic psychological custody evaluation. In these cases, the parties almost always spend several thousand dollars for this. However, a forensic custody evaluation ordinarily spends considerable time interviewing the children and parents in different settings, conduct psychological testing, and collecting substantial collateral data. Collateral data is information that may support or bring into question a parent’s position as to what relates to a child’s best interests. Collateral data ranges from police reports to therapy records. Ordinarily, these evaluations are the only effective way to address a parent’s mental health issues as it relates to the children’s best interests.
We hope this blog helps you understand there are several ways a parent may, with counsel, assist the court to get an accurate snapshot of what is in the children’s best interests. These are legal tools you and your counsel can select from and ask the court to order to advance the case and assist with its determination of what is in the children’s best interest. Every case is different, and you should work closely with your counsel to pick from these legal options—if your case calls for one. This blog is written by attorneys at Ciyou & Dixon, P.C. who handle custody cases of all types throughout the state of Indiana. This blog is written for general educational purposes and is not intended as legal advice or a solicitation for services. It is an advertisement.
- The Indiana Rules of Evidence would not allow a child who is so he/she could not tell the difference from right and wrong to qualify as a competent witness.