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Answers to Custody Questions

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"Do I have a chance to obtain custody of my children?"

Yes! No! Maybe!

I don't mean to be funny, but I have tried murder cases and custody cases, and I honestly believe that custody cases are by far the more difficult. The emotions and pressures involved in forcing an open and often mean- spirited debate as to which parent should have custody of a child are immense.

The best that I can do is suggest that you meet with an attorney who has experience in the area of custody litigation. Only by answering his or her questions honestly and completely can you give your lawyer a good understanding of the strengths and weaknesses of your case. They, in turn, will then give you an assessment of what they believe might happen.

I would also suggest that, while it may be tempting, do not rely on friends, "stories" books, radio/TV talk show advice, or "mail service" information. I can not overemphasize that laws in different states may be completely different. Choose an attorney who is licensed and has experience in your state.

What is a custody dispute?

A custody dispute arises when each of the parents of a child wants to have the child live with them. A dispute can also arise where one parent, though not seeking physical custody of the children, wants to be involved in decisions involving a child's health, education, religous upbringing, or similar types of decisions.

Studies have shown that in approximately 94% of divorce or paternity cases, the parties are able to settle their disagreements without going to trial. These agreements generally involve a "sole" custody situation, where one parent has both legal and physical custody, or "joint" custody," where one one parent may have physical custody, but both parents have legal custody, allowing each to participate in important decisions relating to the child.

In Indiana, any agreement reached by the parties MUST be in writing and approved by the judge. If it is not, it means nothing!

If parents are unable to agree, they submit their cases to a judge, and the judge decides who should have custody. In Indiana, that is done by looking at the "best interests" of the child. If the parties are unable to reach an agreement, and a Court must decide the outcome, I would guess that 80% of the time, BOTH parties feel that they "lost," and the biggest "losers" are the children, who have had to live with this parental "tug of war."

If the other parent and I live in different states, what state law will be applied?

Usually, unless there is an emergency or other rare circumstances, the "home" state will be the only state that has a right to make a custody decision. The "home" state is usually the state where the child has resided for the six months prior to any filing.

If there is already an existing custody order, the Court that issued it will, in most circumstances, keep jurisdiction so long as one of the parents still lives in the state.

Most states follow what is called a "best interests of the child" rule.

What factors does the court take into account in awarding custody?

The answer, as you might suspect, is difficult. There are NUMEROUS factors that need to be weighed and considered. For example, the Indiana law, by statute, states:

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 shall be no presumption favoring either parent. Pursuant to Indiana Code 31-1-11.5-21, the court shall consider all relevant factors including:

  • (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 his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;

  • (5) the child's adjustment to his home, school, and community; and

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

    Rarely will a single factor decide the case. That is why custody cases are very, very fact intensive. It is my experience that factor number "4" carries a substantial amount of weight in most cases. That is why you need to consult with an attorney who will enable you to highlight this important area of consideration.

    Income or financial condition is not listed above, but I can assure you that it may very well prove to be an important, though not decisive, factor.

    In some cases the court will appoint a "Guardian ad Litem," who is an attorney for the children, to make sure that their interests are represented. The Guardian ad Litem will interview the children at length, and generally interview their parents as well, and make a report to the c ourt on his or her views regarding custody. There is usually a charge of approximately $500.00 per party that the Court orders be paid to the Clerk.

    In many cases, either by motion of a party or by the Court's own motion, a custody evaluator will be appointed. Usually, an evaluator is a psychiatrist or psychologist who will then interview the parties, conduct an investigation, and file a report and/or make a recommendation. The mental-health professional will generally have the opportunity to devote far more time to the evaluation than the court could. In some cases, each side will retain his or her own experts. These evaluations can run into several thousand dollars of costs.

  • What is the "tender years" doctrine?

    In the past, almost all Courts had the idea that a child of "tender years", meaning under age 7 or 8, should be raised by his or her mother.

    Indiana has, however, a statute that clearly states that neither parent is to be presumed more or less suited to be the custodial parent. Despite the law, it appears to many custody lawyers that judges remain reluctant to take a small child "away" from a mother and give physical custody to the father.

    But I believe that eyes, and minds, are opening. Mothers have careers and full-time jobs, too. Unlike days of "yore," many mothers have to rely on day care and/or babysitters, just like a father would.

    What if my child wants to live with me?

    As you can see from the factor above, the wishes of a child ARE a factor, but the relatively new [2 or 3 year old] change placing greater emphasis on a child over age 14 tells me something: that the legislature believes that a 13 year old is not mature enough to make an intelligent decision. Since a child over 14 is very close to an age of maturity, when they can drive and make other "adult-type" decisions, it makes sense that their wishes and concerns will be given greater weight.

    In most custody disputes, judges realize that parents are probably trying to persuade their child to "vote" for them. Personally, I don't believe that child "manipulation" is as pervasive as some claim. I don't deny that it exists, but I also believe that it can often, in the long run, backfire.

    How do I get custody changed?

    Indiana used to require a "substantial and continuing change of circumstances that renders the current custody situation unreasonable." Now, Indiana looks at whether it is in the best interests of the child to have a change in the custody order, but ONE of the factors enumerated above ALSO have to have a "substantial and continuing change."

    Courts realize that a change in custody can affect a child; friendships with other children may be lost; the routine is changed; new teachers, new neighbors, new surroundings.

    While the "best interest" standard is always applied to any custody dispute, a different issue comes into play with a custody modification, as opposed to an original custody determination. In a modification, the court is forced to weigh the benefit, if any, of the proposed change against the disruption caused by a change in custody. Studies have shown that changes in custody are extremely disturbing to children and, for that reason, courts are reluctant to make changes unless the proposed new arrangements are almost head-and-shoulders better than the old ones. So a parent seeking a change in custody faces the additional hurdle that an apparently stable and functional custody arrangement, even if it would not have been the best decision originally, will be left intact, rather than disrupt the child's stability.

    Family attorneys frequently meet with parents seeking a modification of custody based on the non-custodial parent's frustration with visitation or other arrangements, or sometimes because of the non-custodial parent's disapproval of the custodial parent's lifestyle, parenting style, friends, paramours or living arrangements. Rarely do these matters, individually, rise to the level that would justify a change in custody (at least in the mind of a court). However, as noted above, all such determinations depend on facts and the court's perception of them. That perception may be very different from the perception of the angry, frustrated non-custodial parent.

    Help! My ex is planning to relocate to a remote state with the kids.

    In today's mobile society, relocation of the custodial parent to a remote state (or even foreign country) is a fairly common occurrence. Many non-custodial parents live in abject fear that their exes will depart with the kids for parts unknown, and many custodial parents feel they need to make a clean break with their exes or to move to a place where their employment prospects will be brighter. There are no good answers. Pursuant to Indiana Code 31-1-11.5-21.1:

    "(a) If an individual who has been awarded custody of a child under section 21 of this chapter intends to move to a residence (other than a residence specified in the custody order) that is outside Indiana or one hundred (100) miles or more from the individual's county of residence, that individual must file a notice of that intent with the clerk of the court that issued the custody order and send a copy of the notice to the parent who was not awarded custody and who has been granted visitation rights under section 24 of this chapter.
    (b) Upon request of either party, the court shall set the matter down for a hearing for the purposes of reviewing and modifying if appropriate the custody, visitation, and support orders. The court shall take into account the distance involved in the proposed change of residence and the hardship and expense involved for noncustodial parents to exercise such rights, in determining whether to modify the custody, visitation, and support orders.
    (c) Except in cases of extreme hardship, the court shall not award attorney's fees.
    Most states will apply a best-interests test to such a proposed relocation: if the relocation is in the best interest of the children (not of the custodial parent), then the relocation will be permitted. Note that this standard means that there must be some demonstrable benefit for the child in the relocation, not just for the custodial parent, and that benefit must outweigh the detriment associated with loss of contact with the non-custodial parent. Often relocation will be permitted conditioned on changes in visitation or some financial consideration to the non-custodial parent to offset the increased costs of contact with the children.

    Do I need to hire a lawyer?

    I know that this may sound self-serving, but I'm afraid that you do. Child custody disputes are complex and often depend on factors that a layperson might not consider. Moreover, the parent's closeness to the subject matter makes an objective presentation of evidence nearly impossible. If you cannot afford a lawyer, there may be resources available to you at state expense. Check with your local Legal Services Corporation unit, Legal Aid Society or the court clerk.

    Because the law of child custody varies from state to state, a person who may have valuable rights affected by such laws should consult with an attorney who specializes in such matters. The foregoing should not be construed as legal advice, which can only be given by an attorney who is admitted to practice in your state, to whom you pay a fee, and who in return undertakes to protect your rights and to explain your responsibilities.

    How much can this cost me?

    The cost of a custody case is almost impossible to predict. I can tell you that a minimal cost will probably be around $3,000.00, with a maximum exceeding $20,000.00.

    Why such a range? Well, as in most cases, it all depends on what you can afford and what you want your lawyer to do.

    If you want your lawyer to take depositions of 10 people, with each deposition taking an hour or so, your lawyer may spend an hour or two preparing for EACH deposition. That means that depositions ALONE can cost you 20 to 30 hours of attorney time, if not more. At $125.00 per hour, that becomes $2,500.00 to $3,750.00. In addition, the Court Reporter will often charge approximately $35.00 per hour for her time, and will then charge perhaps $2.25 PER PAGE [for a sealed original and one copy] to transcribe the deposition.

    As an example, a one hour deposition of the opposing party may turn out to be approximately 75 pages long, so when you add the one hour of lawyer preparation, the one hour of lawyer time taking the deposition, the one hour of Court Reporter time, and the $172.50 in transcription costs, you're at $457.50!

    As mentioned above, the appointment of a Guardian ad Litem may cost you $500.00. The order of a full custody evaluation by a psychologist or other expert may cost you $1,000.00 or more. The witness "fee" for a witness other than a party to come for a deposition or a to court for a hearing is $5.00 per day plus mileage to and from court. These costs and expenses add up.

    Under Indiana law, the Court can order the opposing party to pay all, some, or none of your attorney fees. And, it goes the other way, too. I have no desire to become a creditor of your ex-spouse. If I work for you, YOU are responsible for my fees. If the Court orders the opposing party to pay some of your attorney fees, if there is a balance owed to my, payments made can be applied to your balance. If you have paid me in full, payments made will go to reimburse you.

    I have a fairly flexible retainer structure that I use. I consider your income, the income of the opposing parent, the strengths and weaknesses of the case and, quite honestly, how interesting the case is before I quote a retainer. But don't let a "low" retainer fool you; it just means that I'll start the case. Monthly billing statements will be sent. Your bill might be "ahead" for a month or two, but then we have a court appearance and a few depositions along with some other paperwork matters, and the next bill might go from a $200.00 credit to a $2,500.00 balance due! Payments on the balance, however, can be negotiated.

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           WARNING: All information contained herein is provided for the purpose of providing basic information only and should not be construed as formal legal advice. The author disclaims any and all liability resulting from reliance upon such information. You are strongly encouraged to seek and retain professional legal advice before relying upon any of the information contained herein.

    © Copyright 1997, 1998 Gojko Kasich, Crown Point, Indiana