Friday, February 16, 2007

Modifying the Decree: Custody Modification

Custody can be modified in several ways at any time until emancipation of the child so long as the party seeking modification meets the statutory grounds for modification. The statute on custody modification has a deceptively simple standard. A custody modification requires a substantial and continuous change that makes a modification of the custody order in the child’s best interests. I say deceptively simple because no can say what will be in the child's best interests in all circumstances. The statute only gives the judge this list of things to consider:

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.
Note carefully that whether the custodial parent is unfit is not part of what must be proven by the non-custodial parent. Unfitness is actually harder than proving what is in the child's best interests.

An agreement poses the simplest method for changing custody. If the parties agree then there is nothing for the non-custodial parent to prove and thus no need for a decision from the judge. I do think that judges ought to require pro se parties to submit to a hearing before signing off on a custody agreement. However, I am not aware of any courts with this requirement.

Without an agreement, the matter goes into the discovery phase followed by a hearing. I have not seen a custody hearing that took less than a day. The lawyers will try to present all the evidence pertaining to the best interests factors that they have available. When it is all done, the judge will take the matter under advisement (meaning he is going off and think on it for a while). When he comes up with a decision, he lets the attorneys know about it. Indiana law leaves to the judge a wide discretion in custody cases but that does not mean the decision cannot be appealed to the Indiana Court of Appeals. As with custody decisions, whether to appeal a decision can only be made on a case by case basis.

The judge has the discretion to not change the preceding custody order, move all the children to the non-custodial parent, move some and keep some in place, change from joint to sole custody or change sole custody to joint custody.

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