In my daily practice, I receive many questions relating to child custody and child support. Below are some of the most common questions I receive, with accompanying answers.
How is child custody determined if the parents were never married?
- If the parents of a child born in Indiana were never married, then the first step in determining child custody would be for one party to file a petition with their local county court. The court would then have a hearing, assess the strengths and weaknesses of each parent’s situation and with that information, make key decisions on custody, visitations, and child support. At all times, the court will be guided by what is in the child’s best interests.
How is child custody determined if the parents are divorced or getting divorced?
- A custody action under a divorce is quite similar to that for unmarried parents. The primary difference is that custody determinations in a divorce are one part of a much larger, more complex case, whereas custody actions for unmarried parents typically focus on fewer things, and don’t involve as much complexity. However, the underlying basis for both forms is similar, in that a court in either situation will make its determinations for custody based on evidence and testimony presented, and what it feels is in the best interests of the children involved.
How is paternity established in Indiana?
- If the parents of a child born in Indiana were never married, there are two ways that paternity can be established. The first is by paternity affidavit, which may be signed at the hospital at the time of the child’s birth, or signed afterwards (with both parents present) at the local health department. The second method of determining paternity in this situation is by court order.
- For a child born of a marriage, a man is presumed to be the child’s father if he and the mother were married at the time of the child’s birth, or if the child is born no later than 300 days after the marriage ends.
What is a child custody order?
- A child custody order is an order issued by a court, which outlines rules for custody, visitation, child support, holidays, exchanges, etc., for a particular child.
How is child support determined in Indiana?
- Child support is typically determined in one of two ways in Indiana. The first, and most common method, is to use the Indiana Child Support Calculator, which is a tool that allows for quick and easy calculation of a fair support contribution to be made by each of the parents. The second method of determining child support is for the parents and/or the court to come to a reasonable determination on child support based not on the Child Support Calculator, but rather on the specific facts of the case and the respective positions of each party.
What is the Indiana Child Support Calculator?
- The Indiana Child Support Calculator is a tool developed by Indiana courts, which allows for easy determination of parental support obligations. It is available online, and can be found at http://mycourts.in.gov/csc/parents/.
Does child support have to be determined by the Indiana Child Support Calculator?
- Not necessarily. Although courts, attorneys, and parents often use the calculator as a template or starting point, the parents are not necessarily bound by the numbers generated by the calculator. Perhaps there are special circumstances that are not fully accounted for in the calculator, or perhaps the parents come to an amicable agreement on support that deviates from the calculator’s total. Such deviations from the calculated support number are permitted in certain situations, but they are analyzed on a case-by-case basis. Also, keep in mind that judges will not permit a deviation that strays too far from the calculator’s suggested number, or is not in the best interests of the child.
What are the Indiana Parenting Time Guidelines?
- The Indiana Parenting Time Guidelines are a set of suggested provisions which can be used by parents or practitioners in building custody agreements. The Guidelines present standard provisions for things like custody, visitation, holidays, etc., to be used as a template or starting point for parents, attorneys, or judges in establishing child custody arrangements. The Guidelines may be used in whole or in part by the parties involved in a custody matter.
Are parties permitted to come up with their own custody agreements?
- Yes, generally, parties are permitted to come up with their own custody agreements. However, any custody agreement must still be approved by a judge, and this means that the agreement must be reasonable and work towards the best interests of the child. In practice, this also means that such an agreement must not deviate too far from the Indiana Parenting Time Guidelines. Out-of-court agreements which do not meet these parameters may be disapproved by a court.
Are parents permitted to set their own child support?
- As with custody agreements, parents do have some leeway in defining their own child support terms, although these agreements must still be approved by a court. However – and again, similar to custody agreements – the terms agreed to by parents in a child support agreement must be reasonable, and promote the child’s best interests. Such agreements must provide for a fair amount of support for the child, and must not deviate too far from the Indiana Child Support Calculator. Out-of-court agreements which do not meet these parameters may be disapproved by a court.
Do I really need to have a child custody order?
- Some parents, for a number of reasons, avoid the step of formally establishing court-ordered child custody and child support. While this may work (at least in the short term) for a minority of parents, in general, it is not a good idea. Without a court order in place, there is no way to guarantee that either party will adhere to whatever informal terms have been established. If one party decides that they no longer want to cooperate, there is little that the other party can do to otherwise compel them. Only by getting a court order in place can both parties feel confident that the other party will comply, or, if the other party does not comply, that actions can be taken which would lead to enforcement.
Can a child custody order be modified? If so, how?
- In most instances, either parent may move a court to modify their child custody agreement. The parent interested in getting the agreement modified would need to file a motion with the relevant court, explaining why it is that the agreement should be changed. Modifications are not granted automatically, however. Typically, a court will hold a hearing on the motion, at which both parties will be able testify and present evidence as to why the agreement should or should not be changed. A court will make its decision based on the best interests of the child in question.
Can a child support order be modified? If so, how?
- Yes, a child support order can be modified under certain conditions. The Indiana Code permits a possible change to support where 1) there has been a substantial and continuing change of circumstances, or 2) the current support order differs from the Child Support Guidelines amount by 20% or more. In order to have a support order changed, you would need to petition the court and ask for a hearing, and then present evidence and testimony to show that you meet one of the conditions required.
How do I set up my required child support payments?
- Each county has different procedures for setting up child support, so you will need to speak with your court clerk. However, generally setup proceeds along the following pattern: a child support account will be set up with the local child support office; an income withholding order will be prepared for the paying parent, outlining exactly how much is to be taken out of their paycheck, and how often; the income withholding order will be signed by the judge; the income withholding order will then be submitted to the paying parent’s employer, who will take out regular payments and submit them to the appropriate office, as ordered. The full setup process usually takes between 2-3 weeks.
What do I do if a parent is not abiding by the child custody order?
- If a parent is not complying with what a court ordered, you can ask the court to hold them in contempt. This is done by filing a “motion for rule to show cause,” in which you ask the court to set a hearing, and force the other parent to come in and “show cause” as to why they should not be held in contempt for their actions. At the hearing, both sides will have the opportunity to testify and present evidence, and if the court finds against the parent who is breaking the order, it can then find them in contempt, and/or order other sanctions (such as makeup parenting time, payment of the other party’s attorney fees, etc.).
What do I do if a parent is not abiding by the child support order?
- You can file a motion for rule to show cause, as laid out in the previous answer, and ask the court to find the other party in contempt. You can also reach out to your local child support prosecutor, and ask them to review the matter.
NOTE
All legal references are made with respect to Indiana law. Please check the laws of your local jurisdiction if you live in another state.
The articles in this blog are for informational purposes only. No attorney-client relationship is established through the publication of these articles.
