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Frequently Asked Questions

                                                                                         

1. What are the Parenting Time Guidelines?

 

When married people in the State of Indiana have a child and divorce, or have a child out of wedlock (juvenile paternity case), the court gains jurisdiction over the parties children to the extent that the court makes decisions about when the parents see the child. As a general statement, the non-custodial parent is presumed to see the child or children pursuant to the Indiana Parenting Time Guidelines. Please select the link below in order to review the current Parenting Time Guidelines for Indiana.

 

 

 

2.  How is child support calculated?

 

Child support as calculated pursuant to the Indiana Child Support Guidelines.  The guidelines take into consideration a number of factors, the most significant are the parties income, daycare costs, parenting time, and medical insurance premium costs.  Other less significant factors such as pre- and post-born children not of the relationship are also factors. On its face, the guidelines would appear to leave little room for disagreement. Unfortunately, that is not the case.  Lawyers argue many aspects of the guidelines to include but not limited to ones actual ability to earn income, what actual income is, the inclusion of overtime, and how much parenting time to calculate for credit, who carries the medical insurance, is the day care reasonable, and is it actually being paid?  Please select the link below in order to get an estimate of the child support owed in your matter.

 

 

 

 

3.  What is contempt of court?

 

If you're involved in a divorce action, or a paternity action, the court has jurisdiction over your lives to the extent that the law permits.  This generally includes the court's authority to order the parties to pay child support, abide by the Indiana Parenting Time Guidelines or other orders of the court regarding parenting time, payment of debt, and delivery of property to another person.  These are just many of the types of orders a court can issue. A party subject to the jurisdiction of the court must abide by a court order.  If a party willfully fails to abide by a court order, the court can punish that individual by, among other things, awarding attorneys fees to the opposing party, and or incarceration.

 

 

4.  What types of custody of children are recognized in Indiana?

 

Sole Custody: sole custody is pretty rare these days. It is where one parent makes all the decisions regarding a child's health, education and religion.  It does not affect parenting time.  Parenting time is a separate and distinct order of the court.  As previously discussed, parenting time is presumed to be pursuant to the Indiana Parenting Time Guidelines.

 

Joint Legal Custody: joint legal custody is where both parties have full "say-so" regarding matters over the children's health, education and religion.  In this instance, the court is divested of "parenting" of a child.  The court can only intervene when the parties do not agree by divesting one parent of joint legal custody who has created a "battleground" in regards to the joint custodial rights.

 

Primary Physical Custody: this is in the context of who has "possession" for sake of a better word, of the child or children.  Generally it works in the following situation, the parents share joint legal custody with one party having primary physical custody, and with the other party having parenting time pursuant to the Indiana Parenting Time Guidelines.

 

Joint Legal and Physical Custody: this is where the parties share decision-making regarding the health, education and religious matters of their child or children. Further, the parties generally share time with the minor children on a 50-50 basis, but not necessarily.

 

All being said, generally, the courts are inclined to award joint legal custody with one party with the other party maintaining primary physical custody. It is rather rare, at least in my experience, for a court to award sole custody these days.

 

 

5.  When is a child considered emancipated?

 

Emancipation of a child under the jurisdiction of divorce or paternity court occurs along a timeline from as early as 16 to 19.  There are many factors to consider, the easiest one to discuss is when a child turnes 19.  By law, they are emancipated unless the child is disabled.  Further, a child will be deemed emancipated if they are married, and may be emancipated in the event they join the military or, are no longer are under the care and control of a parent.

 

 

6.  Under what circumstances might a party modify custody from one parent to another?

 

This is a very heavily litigated area of family law. Initially, when a custody determination is made by the court, the standard to determine initial custody is the best interest of the child. Once the initial permanent order is in place, the requirements for a modification of custody from that parent to the other parent requires a showing of a substantial change in circumstances such that the current order is unreasonable, and it must be in the best interest of the child or children for custody to be changed. There is a tremendous amount of case law establishing factors and facts to support a modification. One note, children never get to choose where they live. Although, as a child gets older, the court is inclined to consider the wishes of the child, but must consider their wishes after the child reaches age 14.

 

 

7.  Does a parent have to contribute towards college expenses for their child?

 

The answer to that question is an interesting one. Usually, yes.  Although, one should note initially that parents are not required to pay or contribute towards their children's college expenses if they are not divorced.  It's interesting that if the child has parents who are either divorced, or were never married, the court has authority to order the parents to contribute towards their education. The court order for contribution towards college expenses for a child must be in effect before the child turns age 19 (*exception). College expense contribution is determined by the application of the child support guidelines which is addressed as one of the FAQs herein. One often hears about a 1/3, 1/3, 1/3 contribution by the parents and the child.  Although the law does not support such an order as a matter of course, courts, and the parties often agree to split the cost in that manner.  As in most cases, such decisions can be entered into by an agreement, and if no agreement, by the court after a hearing.  One must note, that it is very rare for the court to order college contribution from parents for a private college or an out-of-state college. Typically, the cost for contribution must be for an in-state college tuition level.  

    *If the child you are seeking college contribution for had court ordered support issued before July 1, 2012, the age is 21, not 19.  

 

8.  What are the filing fees?

 

A filing fee is a fee paid to the Clerk to cover the cost of the court to administer your filing, it is not a fee for services prpovided by the attorney.

 

9.  What counties require me to take a counseling course before my divorce will be granted by the Court?

 

If your Petition for Dissolution of Marriage is being filed in Clay, Hendricks, Montgomery, Putnam, Vermillion or Vigo counties you will be required to attend a class called Helping Children through Divorce.  The Counseling Course link gives you phone numbers in different counties to contact to sign up for the class that is most convenient for you.

 

10. What does the court look at when it determines custody of a child?

 

I like to answer that question by simply referring to the law on the matter. But first, I like to say that the courts have traditionally looked at the mother first to determine suitable custody for a child or children. This is despite the fact that the law states that the parties are equal in regards to consideration. But, judges have changed substantially over the years, and that advantage that mother's originally had does not exist to the extent that it did in the past. The courts really do look to the best interest of the child when determining who should have custody of the child or children. There are many factors the court looks at from a practical standpoint but the most important factor is to determine who is the primary care provider for the child? This is the person that fed the children, read to them, cared for their emotional and physical needs throughout their lives. The landscape of that has changed as we have all experienced it with fathers participating with her children on a more personal level than they did in the past. This mere fact has changed substantially how judges are ruling. That being said, if two parents walk into a courtroom equal on every other basis, I believe mother still has a slight advantage with the courts. In any event, these are the factors the court is mandated to look at when making such a determination:

 

    IC 31-17-2-8  

    Custody order

    31-17-2-8 Sec. 8. The court shall determine custody and enter a custody order in accordance with the             best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:

     (1) The age and sex of the child.

     (2) The wishes of the child's parent or parents.

     (3) 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.

     (4) The interaction and interrelationship of the child with:

        (A) the child's parent or parents;

        (B) the child's sibling; and

        (C) any other person who may significantly affect the child's best interests.

     (5) The child's adjustment to the child's:

        (A) home;

        (B) school; and

        (C) community.

     (6) The mental and physical health of all individuals involved.

     (7) Evidence of a pattern of domestic or family violence by either parent.

     (8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.

 

11. What does first right to refusal mean? 

 

Pursuant to the Indiana Parenting Time Guidelines it means essentially that if a parent needs daycare for a child, (work related or otherwise) the other parent should be given an opportunity to care for the child at no expense. You will not find "first right to refusal" in the Parenting Time Guidelines per-se, but rather it is therein as "opportunity for additional parenting time". This is a difficult provision for many parents. The difficulty comes into play when a parent would like for family members, usually grandparents to watch the child instead of a "the other parent". Under the guidelines a parent does not have to allow "first right to refusal" if there is a family member available to keep the child.  There's a clear line here, if you have "family members" in your home, the first right to refusal does not apply to you. A family member is not a boyfriend or girlfriend.

 

Parenting Time Guidelines Child Support Calculator