Friday, February 16, 2007

Indiana child custody law - changes - age of child

While searching for something entirely different, I found this online here

I live in Anderson, Indiana. My question is that my 12 year old daughter wants to come and live with me but we aren't sure what the age is in our state for her to make that decision. Also, she is afraid of her dad. Afraid how he might treat her/ act if she was to move in with me. Our main concern is what the age is here in Indiana for a child to decide which parent they want to live with.
Reader, you might also want to take a look at the responses to this post. As a lawyer practicing child custody law, this annoys me in several ways:
  1. Asking people for advice who have never looked at Indiana's child custody statute.
  2. Not calling an attorney.
  3. How wrong all the advice was but for the person telling the original poster to call an attorney.
  4. That somehow, some way, a certain kind of myth has arisen about the age of child giving the child some say in choosing a custodial parent.
The simple answer is that the child never gets to choose which parent she or he wants to live with. The judge makes the decision about custody based on the best interests of the child. What is in the best interests of the child? Unfortunately for easy answers, no explicit definition exists of best interests. What Indiana law gives us is a list of things which have to be considered in reaching a decision:
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.
As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.7; P.L.133-2002, SEC.32.
Let me give you a gross and probably grotesque example. If a 14 year old wants to go live in a crack house, no judge is going to find that in the child's best interests. Let us remember that we are discussing children here. They have their whims and the ignorance of inexperience and it cannot be assumed that they know what is best for them.

In the end, I think my greatest annoyance is knowing that this person may have made a poor decision based upon faulty information. Information that ought to have been provided to them at the time of the original custody order. Apparently, it was not. Then, too, this person sought to save some money by seeking advice from non-lawyers. I think custody issues are one place not to be penny wise and pound foolish.

It has been my practice for years to brief my clients on what comes after the Final Hearing. Explain how to modify their Decrees and/or enforce them. I am amazed still how many people come to me after being represented elsewhere and have no idea of their rights to modify or enforce their Decrees. Does mystifying our clients really benefit us? I do not think so.


Anonymous said...

My son is 14 and all of the sudden he up and wanted to go live with his dad, with out telling me. His dad just decided on his weekend to keep him. What should I do? My son and I do argue about him additude and being respectful.

Sam Hasler said...

I took a long time deciding on whether to publish this comment. First, I thought it went against my disclaimer. Second, there really is no question here that can be answered except for the person to get a lawyer.

Remember this: there are court orders and these are not be ignored. Or taken lightly. But the only person to enforce those orders are the parties - not the court.