When Should I Modify Custody in Indiana?

One of the most frequent questions that parents have is when should they try to get custody of the kids back? Do they have to wait a certain period of time? Do they have to prove the other parent is "unfit" to get custody? When can they go to court for their children?

WHAT DO INDIANA FAMILY COURTS LOOK AT?

Indiana has a statutory framework for determining whether a custody modification is warranted.  This article is not legal advice on these statutes.  It is an approach for you to use to help you determine if a request to modify custody is appropriate in your situation.

Indiana requires a showing of a substantial change in in 1 or more of the factors used to make the initial custody determination. One important point to remember is that there is usually a presumption that the custodial parent will keep custody. A pleading to modify custody is NOT a "do over" of the initial (or last) custody. You need to consider THIS when trying to settle your divorce; i.e., that you cannot re-try the custody determination if you agree that the other parent should have custody.

HOW CAN I DECIDE WHEN TO MODIFY CUSTODY?

To decide if you should seek a custody modification, you should look at each factor, since that is what the Court will base its decision on.  But a quick way to analyze this is to look at 2 things: why the kids need to come OUT of the other parent’s house, and why your house is okay for the kids to go into to. That's pretty much it.  This simple 2 step formula is a good guide for your decision and for the preparation of your case.

Let's look at these individually. Step 1: why the kids need to come OUT of the other parent's house. This doesn't mean you have to prove the other parent is unfit, or make false allegations against him or her. But you must show that something in the other household has changed, and now your kids need to come out. It could be a new boyfriend in her household. It could be that his drinking has increased. It could be that your ex has moved frequently, or changed jobs frequently, or changed boyfriends or girlfriends frequently. But your focus for this step is what is going on in that other home, and why it's bad or harmful to the children. You don't need to wait for the kids to be harmed.

Step 2 is that your house is okay for the kids to come into. That means that you may need to clean up your act. Let's say that you prove that dad's drinking has increased, and the kids are threatened by it. But he shows that your pot smoking has never stopped. The Judge could easily decide to take the kids out of his house, but not put them with you. Now where are they? Or say you prove that her boyfriend has a violent temper, and the Judge decides to remove your kids from her. But the evidence shows that you have moved 6 times in 7 months, and have had 4 girlfriends during that time. The Judge may feel that you are too unstable to have the kids. So carefully examine your situation, and make any changes that your lawyer (or the custody evaluator) recommends.

PARENTAL ALIENATION

Parental alienation can be the basis for a request to modify custody,  This topic will be addressed in a future post.  Without going into an in depth analysis of parental alienation and its affect on custody, the above 2 step analysis can help you if or when to seek a custody modification.  Step 1 is to determine if alienation is occurring in the other house.  If so, then step 2 is to honestly look at your household to see if moving the child or children there can help them keep positive relationships with both parents.

HOW CAN YOU APPLY THIS TO YOUR SITUATION?

So when should you change custody? When you can successfully show both steps. This means that you have to keep an eye on the other household. Don't stalk your ex.  But do talk to mutual friends. Listen to your kids. VISIT your kids. Communicate with the other parent. Hire a private investigator, if necessary. But be aware of the household and of the atmosphere in which your children are being raised. And don't hesitate if you think that atmosphere has changed for the worse.

Again, your case must be presented according to Indiana’s custody modification statutes. And it must follow Indiana’s rules of civil procedure. But by keeping the above 2 steps in mind as you and your lawyer are preparing the case, it should make the presentation clear to the Judge that custody should be modified and changed to you.

WHAT IS MY NEXT STEP?

Use our CONTACT page to schedule a strategic review of your custody situation to help you determine if a custody modification is appropriate.  This review can also help you set the stage for a custody modification.