FAQ

Who will get custody of our children?

 

You and your spouse can decide which you will have custody of your children.  if you are unable to resolve this issue, then a court will make the decision based upon the best interests of the children.  Judges consider a variety of factors in determining which parent is entitled to custody.  For a complete list of those factors, click here.

 

What is joint legal custody?  What is sole custody?

 

Even where there has been an amicable settlement on the issue of a child's principal residence, parents can get hung upon on terminology.  One parent insists she wants "sole custody" and the other parent fights toinclude the phrase "joint legal custody" in the written agreement.  This fight over language is often less important legally that the spouses think.  These terms typically refer to a parent's rights to make decisions regarding the child, with "sole custody" indicating that the parent with possession has most or all of the decision making authority and with "joint legal custody" tending to indicate that each parent will be involved in the decision-making.  To learn more about the types of custody, click here.

 

If both parents have custody does anyone pay child support?

 

Yes, in Indiana both parents are responsible for support their children and there will always be a child support payment except in the unusual circumstance of both parents earning exactly the same income and spending exactly the same amount of time with the children. 

 

Can a parent refuse to allow visition if child support is not paid?

 

Although many parents think they can tie child support payments to visitation privileges, its important that you understand that the one is legally independent of the other in terms of unilaterally withholding support or suspending visitation.  Thus, for example., if one party has not received court ordered child support, he or she may not independently decide to bar the other from exercising any visitation rights.

 

Do the children get to decide who they will live with?

 

The court may consider the wishes of the child when awarding custody and especially, if the child is at least 14 years of age.

 

Why should I have a written agreement about custody?

 

Of the many issues in family law, child custody is perhaps the most emotionally chargd.  For this reason, it can also become the most expensive sort of litigation that might result from your separation.  In most cases, however, couples are able to compromise on custody without forcing this issue into court.  But unless you and your spouse have a written agreement approved by the court, you both have co-equal rights to the physical possession of your children.  Unless there is some written document establishing custodial and visitation rights, the custodial arrangements are subject to being changed at the whim or caprice of eithe parent. 

 

Can I get a temporary custody order?  What is an ex parte order?

 

The court may award a parent temporary custody while the divorce is pending. "Ex parte" means that only one side tells the court its version of events, for that reason that the other side has not yet been given the opportunity to address the court.  Most courts refrain from granting ex parte custody orders since they do not fully satisfy the due process requirements of the U.S. and Indiana constitutions.

 

Who decides a custody case if it goes to trial?

 

A judge, not a jury, hears and decides custody matters in Indiana. 

 

What is visitation in Indiana?

 

The non-custodial parent will be granted visitation.  While you and your spouse may agree on a visitation schedule, the court will usually follow the Indiana Parenting Time Guidelines.  Click here for them.

 

Can a judge order no visitation or supervised visitation?

 

It almost never happens in Indiana that the non-custodial parent is denied any visitation with a child.  If the judge is persuaded, however, that a child may come to some harm or danger if visitation is not monitored, the jude can order that visitation be supervised by the other spouse, a relative or an unrelated third party.

 

Do the Indiana courts favor one parent over the other?

 

There is no presumption favoring either the mother or father in a custody case.    The court is to decide custody based upon what is in the child's best interests.  Nevertheless, many judges are still stongly inclined to favor the mother while a child is very young, most especially when the mother has been the child's primary caregiver all along.

 

If I have custody will I receive child support payments?

 

The court will almost always order that child support be paid to the custodial parent by the non-custodial parent.  In Indiana child support payments are based upon guidelines.  These guidelines are followed by the court in most cases; however, the court may devate from the guidelines when appropriate.  If the court makes such a deviation, it must state in writing its reasons.

 

How is child support determined?  What are the Indiana Child Support Guidelines?

 

Like most states, Indiana has adopted guidelines to establish automatic rates of child support according the gross weekly incomes of the parents and the number of children.  For the Indiana Child Support Guidelines, click here.  In Indiana, the guidelines are based on the combined gross weekly incomes of the father and mother of the child.  The parties' share monetary obligation is then computed by considering both parents' gross income, taking into account responsibility for other children, work-related child care and health insurance costs.  These calculations are made by completing a child support obligation worksheet.  For the worksheets and forms, click here. 

 

What facators impact child support amounts?

 

There are basically six adjustments that can impact the child support owed by the parent:  pre-existing child support orders, subsequent born children, payments for health insurance premiums, work-related child care costs, the number of overnights the child spends with the non-custodial parent, and extraordinary expenses for a child's medical bills and education.

 

What is the parenting time credit for child support?

 

The non-custodial parent will receive a parenting time credit on his or her child support obligation. This credit is based upon the number of overnights per year the children spend with the non-custodial parent.  The guidelines reason that the non-custodial parent incurs expenses when the children spend the night.  The impact of the parenting time credit will vary depending upon the number of overnights.

 

How long is child support paid or received?

 

Child support is available under Indiana law until the child is 21 years of age or until emancipated by the court, whichver occurs first.  It should be noted that Indiana is one of the few states where child support continues until 21.

 

How can a child be emancipated so child support ends?

 

In Indiana a child can be emancipated by the court if: 1) the child is at least 18 years of age; 2) is not enrolled in school; 3) has not been enrolled in school for at least four (4) months; and 4) is capable of support him/herself.

 

What can I do if my spouse refuses or fails to pay court ordered child support?  What are the options if child support is not paid on time or in full?

 

The basic remedy is to file a contempt citation against the parent.  This can either be done with a private attorney or the county prosecutor.  The court will conduct a hearing and if the parent is found in contempt for not paying child support as ordered, there are several remedieis to enforce or collect including seizure of real estate and personal property, orders that bonds be posted, assignment of wages, garnishment, arrest and interception of income tax refuds.

 

Can my spouse avoid paying child support if he or she files bankruptcy?

 

No, child support obligations are not dischargeable in bankruptcy court.

 

Will it be necessary to have a hearing to decide child support?  What will be involved in a hearing?

 

No, child support may be settled out of court between you and your spouse by written agreement approved by the court or it may be resolved after a hearing before the judge.  If a hearing is necessary, the court will want to hear about the parties' income and expenses, the child's reasonable needs, each parent's relative ability topay suport, and the bases for requesting any deviation from the guidelines.

 

How can child support be modified?

 

Once child support is established by the court, either party can ask it be modified.  The court will modify the child support if you or the other parent experience a "substantial and continuing change of circumstances."  This is generally deemed to mean at least a 20% permanent increase or decrease in come and its been at least 12 months since the last support was issued. 

 

Is child support taxed to the recipient?

 

No.  Child support is not taxed to the recipient nor can it be claimed as a tax deduction by the payor.