“Winning” a Custody Case

Custody cases are a reality for almost every parent going through a break-up.   You were together, “in love”, and you had a beautiful baby that brought you joy and happiness, but then it all fell apart.  You’re more in hate than in love these days, and you can’t stand to live in the same home any longer.  So what do you do?  That beautiful baby/child/teenager, etc. can’t be cut in half, no matter what Solomon might say.  Which means that someone is going to “win” custody, someone is going to “lose” custody, someone is going to get “parenting time”.  And for sure, your relationship with your child is going to change forever, because no matter what there are going to be days when they’re not there, nights when you don’t get to tuck them into bed.  Other people, including that other parent you can’t stand anymore, will get to make decisions about what they will have for dinner, or wear to school, or who they’re going to hang out with.
What do you do when you find yourself in the midst of a “custody battle”?  How do you fight?  How do you persuade the Judge?  Can you make sure you’re the one to “win”?

What is custody?  Can more than one person have custody?  

In a custody case, it is a Judge’s role to analyze and weigh several factors, and then to enter an order that the Judge believes is in the “best interests” of the child.  This order could place custody with one parent, equally with both parents, or even with a non-parent who has acted in the role of a parent (known as a “de facto”).

Factors Considered by the Judge

Indiana Code 31-17-2-8 is the statute that lists factors that a Court is required to consider in making custody decisions.  These factors include things like:
  1. The age and gender of the child.
  2. What each parent wants as far as a custody order.
  3. What the child wants, particularly if the child is more than 14 years old.
  4. The relationship and interactions that each parent has with the child.
  5. The relationship and interactions that the child has with their siblings that will be in each parent’s home.
  6. The relationship and interactions of the child with other significant people in the child’s life (grandparents, significant others, aunts and uncles, etc).
  7. How well the child is adjusted and settled in their current home.
  8. How well the child is adjusted and settled in their current school.
  9. How well adjusted and involved the child is in their current community.
  10. The mental health of the parents and the child.
  11. The physical health of the parents and the child.
  12. Any evidence of a pattern of domestic or family violence by either parent or in that parent’s home.
  13. Any evidence that the child has been cared for by a de facto parent.
  14. Any designations as to custody that have been put in a power of attorney or other legal document by a parent or a de facto parent.
It is important to note that the statute requires the Judge to consider EVERY factor on this list.  The Judge can’t just decide a custody matter by looking at only one or two of these.  So, while many parents believe that they should have custody of their child because that’s what the child has said they want, that isn’t what the law says.  It is a common misconception that a child “gets to decide for themselves” once they reach 14 years of age.  While this is one of the factors considered by a Judge, it is not the only one, and the Court is required to look at every factor and consider what is BEST for the child and not only want the child wants.
Another misconception by parents is that a change of just one of these factors is going to be enough for a Court to change a custody order.  It is true that a Judge HAS to find that one of these factors has changed in order for the Judge to change custody.  However, it is completely up to the Judge to decide which of these factors are more significant or “has more weight”.  So, even if everyone agrees that one of the factors has changed (for instance the desire of a parent for a change in custody - factor #2), the Judge could still find that the current order is BEST for the child and deny a modification.
It's NOT about You!
When thinking about these statutory factors, it is also important to remember that a Judge is analyzing these factors from the perspective of the child.  So, for instance, if a parent has a physical or mental illness, the Judge is looking at how that physical or mental illness might impact or affect the day to day life of the child.
If a parent that currently has custody is relocating, the Judge is thinking about how that relocation will affect the child’s relationships with the other parent, with siblings, with significant family members, with community members.  Judges are not unsympathetic to the needs of the parents, or the struggles that they have, but the law requires that they focus not on the parents’ needs and concerns, but on the child’s best interests.  Of course, the law also presumes that it is best for a child to have a healthy relationship with their parents.  The Judge is going to consider that relationship as part of his or her considerations on custody.  It just isn’t the focus of their analysis.
So, as a parent, when you find yourself before the court on a custody case, you will do well to remember that this issue at least is not about you.  It’s about your child.  If you’re in court talking about custody, it is pretty much a given that you love your child and want them with you as much as possible.  But that is probably equally true for the other parent or other adults seeking custody.
Also, don’t pretend that you are perfect and the other parent is perfectly bad.  Most people have strengths and weaknesses.  Judges are human, too.  They understand this.  What they need you to help them understand better is how each parent’s strengths improve your child’s life, and how each parent’s weaknesses or struggles impact the child’s life.
Remember, as far as the Judge is concerned, it’s not about you.  It’s about your child.  As you present your evidence, therefore, you will help the Judge by focusing on your child, and offering evidence about their needs, their successes, and their relationships with the people around them.
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