The answer is “maybe.” Many child custody lawyers are somewhat of a different breed and practice in an area of law known as “equity” more so than law. Equity is an old doctrine from English common law, which is merged into Indiana law by trial rule. Child custody lawyers in Indiana know that equity still exists in practice, particularly in custody cases.
In essence, in disputes between parents as to children, there is no specific “legal” remedy, such as money damages that a civil lawyer might obtain for his or her client in a breach of contract or personal injury case; children cannot be divided, nor can one side “buy out” the other party. Rather, trial court judges are given broad discretion to act in the children’s best interests.
Instead as it relates to a remedy in a child custody case, there are two parties – usually with very different positions on a given child custody issue – and the lawyer must represent one of them, understanding that no matter the strength of their position relevant to their desires and legal objective, the trial court judge will consider the children and what is in their overall best interests. The “best interests of the child” standard may, in some cases, direct a potential legal outcome that seems illogical or inappropriate in the moment, but not in the bigger picture as it relates to parent-child relations.
Experienced Indiana custody lawyers know and understand that judges must (and do) abide by and look out for the best interests of the children. For example, assume that a parent who has had sole physical custody of the children for many years is involved in a horrific accident and becomes unable to take care of the children. It is likely that the trial court, by the opposing parent and his or her attorney, will likely modify physical custody of the children to the non-injured parent. Even when the former custodial parent fully recovers, custody will not automatically revert back to that parent, despite lack of any fault and the fact that parent was (presumably) doing a better job with juggling the children’s daily needs in the first place. If the children are doing well and re-adjusted to the other parent’s home, it is very possible that the other parent will not agree and, following trial, the court will not find a substantial change of circumstances sufficient to modify custody back to the former custodial parent. This is true even if the accident was not his or her fault because the children have become adapted to and are stable and doing well in their new arrangement; and there is always risk in changing it, even back to the prior relationship.
While this scenario may seem unfair to a parent, Indiana trial courts must focus on the best interests of the children overall, not just a parent’s wishes, and thus take a global look into the family. The best interest standard is why your child custody lawyer may advise you of the potential for an unfavorable outcome, which to you seems unbelievable. On the other hand, your custody attorney will work hard to present the facts in your most favorable light under the evidence available relative to your objective (i.e., depending upon which parent you are under the hypothetical example provided; and there are probably strong arguments both ways, which is key to understand to make the best case possible).
Specifically, there are at least eight factors that a trial court weighs in making an initial custody decision or a subsequent modification, and even more if there is a de facto custodian or relocation involved. No matter your place in the litigation stage, an Indiana child custody lawyer knows the tools that exist in the Dissolution or Paternity Acts and will help you accentuate the considerations that best meet your legal objective (i.e., custody) and mitigate those that do not.
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