CHAPTER 2. ACTIONS FOR CHILD CUSTODY AND MODIFICATION OF CHILD CUSTODY ORDERS
IC 31-17-2
Chapter 2. Actions for Child Custody and Modification of ChildCustody Orders
IC 31-17-2-1
Jurisdiction
Sec. 1. Jurisdiction of a child custody proceeding under:
(1) this chapter, IC 31-17-4, IC 31-17-6, and IC 31-17-7; or
(2) IC 31-21 (or IC 31-17-3 before its repeal);
shall be determined under IC 31-21 (or IC 31-17-3 before its repeal).
As added by P.L.1-1997, SEC.9. Amended by P.L.138-2007, SEC.34.
IC 31-17-2-2
Application of Indiana Rules of Civil Procedure
Sec. 2. Proceedings under this chapter, IC 31-17-4, IC 31-17-6,and IC 31-17-7 must comply with the Indiana Rules of CivilProcedure.
As added by P.L.1-1997, SEC.9.
IC 31-17-2-3
Commencement of proceeding
Sec. 3. A child custody proceeding is commenced in the court by:
(1) a parent by filing a petition under IC 31-15-2-4,IC 31-15-3-4, or IC 31-16-2-3; or
(2) a person other than a parent by filing a petition seeking adetermination of custody of the child.
As added by P.L.1-1997, SEC.9.
IC 31-17-2-4
Repealed
(Repealed by P.L.50-2006, SEC.9.)
IC 31-17-2-5
Responsive pleading or counter petition
Sec. 5. A responsive pleading or a counter petition may be filedunder this chapter, IC 31-17-4, IC 31-17-6, or IC 31-17-7.
As added by P.L.1-1997, SEC.9.
IC 31-17-2-6
Hearing
Sec. 6. Custody proceedings must receive priority in being set forhearing.
As added by P.L.1-1997, SEC.9.
IC 31-17-2-7
Court to determine law and facts
Sec. 7. The court without a jury shall determine questions of lawand fact.
As added by P.L.1-1997, SEC.9.
IC 31-17-2-8
Custody order
Sec. 8. The court shall determine custody and enter a custodyorder in accordance with the best interests of the child. Indetermining the best interests of the child, there is no presumptionfavoring 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 tothe child's wishes if the child is at least fourteen (14) years ofage.
(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'sbest 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 byeither parent.
(8) Evidence that the child has been cared for by a de factocustodian, and if the evidence is sufficient, the court shallconsider 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.
IC 31-17-2-8.3
Supervised parenting time; crime involving domestic or familyviolence
Sec. 8.3. (a) This section applies if a court finds that anoncustodial parent has been convicted of a crime involvingdomestic or family violence that was witnessed or heard by thenoncustodial parent's child.
(b) There is created a rebuttable presumption that the court shallorder that the noncustodial parent's parenting time with the childmust be supervised:
(1) for at least one (1) year and not more than two (2) yearsimmediately following the crime involving domestic or familyviolence; or
(2) until the child becomes emancipated;
whichever occurs first.
As added by P.L.133-2002, SEC.33. Amended by P.L.68-2005,SEC.32.
IC 31-17-2-8.5
Consideration of de facto custodian factors Sec. 8.5. (a) This section applies only if the court finds by clearand convincing evidence that the child has been cared for by a defacto custodian.
(b) In addition to the factors listed in section 8 of this chapter, thecourt shall consider the following factors in determining custody:
(1) The wishes of the child's de facto custodian.
(2) The extent to which the child has been cared for, nurtured,and supported by the de facto custodian.
(3) The intent of the child's parent in placing the child with thede facto custodian.
(4) The circumstances under which the child was allowed toremain in the custody of the de facto custodian, includingwhether the child was placed with the de facto custodian toallow the parent now seeking custody to:
(A) seek employment;
(B) work; or
(C) attend school.
(c) If a court determines that a child is in the custody of a de factocustodian, the court shall make the de facto custodian a party to theproceeding.
(d) The court shall award custody of the child to the child's defacto custodian if the court determines that it is in the best interestsof the child.
(e) If the court awards custody of the child to the child's de factocustodian, the de facto custodian is considered to have legal custodyof the child under Indiana law.
As added by P.L.96-1999, SEC.8.
IC 31-17-2-9
Court interview of child in chambers
Sec. 9. (a) The court may interview the child in chambers toascertain the child's wishes.
(b) The court may permit counsel to be present at the interview.If counsel is present:
(1) a record may be made of the interview; and
(2) the interview may be made part of the record for purposesof appeal.
As added by P.L.1-1997, SEC.9.
IC 31-17-2-10
Professional personnel; court consultation; cross-examination
Sec. 10. (a) The court may seek the advice of professionalpersonnel even if the professional personnel are not employed on aregular basis by the court. The advice shall be given in writing andmade available by the court to counsel upon request.
(b) Counsel may call for cross-examination of any professionalpersonnel consulted by the court.
As added by P.L.1-1997, SEC.9.
IC 31-17-2-11 Temporary custodian
Sec. 11. (a) If, in a proceeding for custody or modification ofcustody under IC 31-15, this chapter, IC 31-17-4, IC 31-17-6, orIC 31-17-7, the court:
(1) requires supervision during the noncustodial parent'sparenting time privileges; or
(2) suspends the noncustodial parent's parenting time privileges;
the court shall enter a conditional order naming a temporarycustodian for the child.
(b) A temporary custodian named by the court under this sectionreceives temporary custody of a child upon the death of the child'scustodial parent.
(c) Upon the death of a custodial parent, a temporary custodiannamed by a court under this section may petition the court havingprobate jurisdiction over the estate of the child's custodial parent foran order under IC 29-3-3-6 naming the temporary custodian as thetemporary guardian of the child.
As added by P.L.1-1997, SEC.9. Amended by P.L.68-2005, SEC.33.
IC 31-17-2-12
Investigation and report concerning custodial arrangements forchild
Sec. 12. (a) In custody proceedings after evidence is submittedupon the petition, if a parent or the child's custodian so requests, thecourt may order an investigation and report concerning custodialarrangements for the child. The investigation and report may bemade by any of the following:
(1) The court social service agency.
(2) The staff of the juvenile court.
(3) The local probation department or, if the child is the subjectof a child in need of services case under IC 31-34, thedepartment of child services.
(4) A private agency employed by the court for the purpose.
(5) A guardian ad litem or court appointed special advocateappointed for the child by the court under IC 31-17-6 (orIC 31-1-11.5-28 before its repeal).
(b) In preparing a report concerning a child, the investigator mayconsult any person who may have information about the child andthe child's potential custodian arrangements. Upon order of the court,the investigator may refer the child to professional personnel fordiagnosis. The investigator may consult with and obtain informationfrom medical, psychiatric, or other expert persons who have servedthe child in the past without obtaining the consent of the parent or thechild's custodian. However, the child's consent must be obtained ifthe child is of sufficient age and capable of forming rational andindependent judgments. If the requirements of subsection (c) arefulfilled, the investigator's report:
(1) may be received in evidence at the hearing; and
(2) may not be excluded on the grounds that the report ishearsay or otherwise incompetent. (c) The court shall mail the investigator's report to counsel and toany party not represented by counsel at least ten (10) days before thehearing. The investigator shall make the following available tocounsel and to any party not represented by counsel:
(1) The investigator's file of underlying data and reports.
(2) Complete texts of diagnostic reports made to theinvestigator under subsection (b).
(3) The names and addresses of all persons whom theinvestigator has consulted.
(d) Any party to the proceeding may call the investigator and anyperson whom the investigator has consulted for cross-examination.A party to the proceeding may not waive the party's right ofcross-examination before the hearing.
As added by P.L.1-1997, SEC.9. Amended by P.L.146-2008,SEC.558.
IC 31-17-2-13
Joint legal custody; finding required for award
Sec. 13. The court may award legal custody of a child jointly ifthe court finds that an award of joint legal custody would be in thebest interest of the child.
As added by P.L.1-1997, SEC.9.
IC 31-17-2-14
Joint legal custody; division of physical custody
Sec. 14. An award of joint legal custody under section 13 of thischapter does not require an equal division of physical custody of thechild.
As added by P.L.1-1997, SEC.9.
IC 31-17-2-15
Joint legal custody; matters considered in making award
Sec. 15. In determining whether an award of joint legal custodyunder section 13 of this chapter would be in the best interest of thechild, the court shall consider it a matter of primary, but notdeterminative, importance that the persons awarded joint custodyhave agreed to an award of joint legal custody. The court shall alsoconsider:
(1) the fitness and suitability of each of the persons awardedjoint custody;
(2) whether the persons awarded joint custody are willing andable to communicate and cooperate in advancing the child'swelfare;
(3) the wishes of the child, with more consideration given to thechild's wishes if the child is at least fourteen (14) years of age;
(4) whether the child has established a close and beneficialrelationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and (6) the nature of the physical and emotional environment in thehome of each of the persons awarded joint custody.
As added by P.L.1-1997, SEC.9. Amended by P.L.3-2008, SEC.237.
IC 31-17-2-16
Counseling for child
Sec. 16. Upon:
(1) the court's own motion;
(2) the motion of a party;
(3) the motion of the child;
(4) the motion of the child's guardian ad litem; or
(5) the motion of the court appointed special advocate;
the court may order the custodian or the joint custodians to obtaincounseling for the child under such terms and conditions as the courtconsiders appropriate.
As added by P.L.1-1997, SEC.9. Amended by P.L.129-2005, SEC.2.
IC 31-17-2-17
Custodian may determine child's upbringing
Sec. 17. (a) Except:
(1) as otherwise agreed by the parties in writing at the time ofthe custody order; and
(2) as provided in subsection (b);
the custodian may determine the child's upbringing, including thechild's education, health care, and religious training.
(b) If the court finds after motion by a noncustodial parent that, inthe absence of a specific limitation of the custodian's authority, thechild's:
(1) physical health would be endangered; or
(2) emotional development would be significantly impaired;
the court may specifically limit the custodian's authority.
As added by P.L.1-1997, SEC.9.
IC 31-17-2-18
Continuing supervision
Sec. 18. If both parents or all contestants agree to the order or ifthe court finds that, in the absence of the order, the child's physicalhealth might be endangered or the child's emotional developmentsignificantly impaired, the court may order:
(1) the court social service agency;
(2) the staff of the juvenile court;
(3) the local probation department; or
(4) a private agency employed by the court for that purpose;
to exercise continuing supervision over the case to assure that thecustodial or parenting time terms of the decree are carried out.
As added by P.L.1-1997, SEC.9. Amended by P.L.68-2005, SEC.34;P.L.146-2008, SEC.559.
IC 31-17-2-19
Travel and other expenses of witnesses Sec. 19. The court may tax as costs the payment of necessarytravel and other expenses incurred by any person whose presence atthe hearing the court considers necessary to determine the bestinterests of the child.
As added by P.L.1-1997, SEC.9.
IC 31-17-2-20
Confidentiality of interview, report, or investigation
Sec. 20. If the court finds it necessary to protect the child'swelfare that the record of any interview, a report, or an investigationin a custody proceeding not be a public record, the court may makean appropriate order accordingly.
As added by P.L.1-1997, SEC.9.
IC 31-17-2-21
Modification of child custody order
Sec. 21. (a) The court may not modify a child custody orderunless:
(1) the modification is in the best interests of the child; and
(2) there is a substantial change in one (1) or more of the factorsthat the court may consider under section 8 and, if applicable,section 8.5 of this chapter.
(b) In making its determination, the court shall consider thefactors listed under section 8 of this chapter.
(c) The court shall not hear evidence on a matter occurring beforethe last custody proceeding between the parties unless the matterrelates to a change in the factors relating to the best interests of thechild as described by section 8 and, if applicable, section 8.5 of thischapter.
As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.9.
IC 31-17-2-21.3
Parent's active duty service not a factor; temporary modificationof custody
Sec. 21.3. (a) A court may not consider a parent's absence orrelocation due to active duty service as a factor in determiningcustody or permanently modifying a child custody order.
(b) If a court temporarily modifies a custody order due to aparent's active duty service, the order temporarily modifying thecustody order terminates automatically not later than ten (10) daysafter the date the parent notifies the temporary custodian in writingthat the parent has returned from active duty service. This subsectiondoes not prevent a court from modifying a child custody order asprovided under this article after a parent returns from active dutyservice.
As added by P.L.80-2010, SEC.45.
IC 31-17-2-21.5
Security, bond, or guarantee
Sec. 21.5. The court may provide in: (1) a custody order; or
(2) a modification to a custody order;
for the security, bond, or other guarantee that is satisfactory to thecourt to secure enforcement of the custody order.
As added by P.L.171-2001, SEC.11.
IC 31-17-2-21.7
Security, bond, or guarantee; determinations
Sec. 21.7. (a) The court shall consider requiring security, a bond,or another guarantee under section 21.5 of this chapter if the courtmakes a finding under subdivision (1), (2), (4), or (7) by clear andconvincing evidence. If the court makes a finding under subdivision(1), (2), (4), or (7), the court shall also consider subdivisions (3), (5),(6), (8), and (9) in determining the amount of security, bond, or otherguarantee. In making a determination under this section, the courtshall consider the following:
(1) Whether a party has previously taken a child out of Indianaor another state in violation of a custody, parenting time, orvisitation order.
(2) Whether a party has previously threatened to take a child outof Indiana or another state in violation of a custody, parentingtime, or visitation order.
(3) Whether a party has strong ties to Indiana.
(4) Whether a party:
(A) is a citizen of another country;
(B) has strong emotional or cultural ties to the other country;and
(C) has indicated or threatened to take a child out of Indianato the other country.
(5) Whether a party has friends or family living outside Indiana.
(6) Whether a party does not have a financial reason to stay inIndiana, such as whether the party is unemployed, able to workanywhere, or is financially independent.
(7) Whether a party has engaged in planning that wouldfacilitate removal from Indiana, such as quitting a job, sellingthe party's primary residence, terminating a lease, closing anaccount, liquidating other assets, hiding or destroyingdocuments, applying for a passport, applying for a birthcertificate, or applying for school or medical records.
(8) Whether a party has a history of marital instability, a lack ofparental cooperation, domestic violence, or child abuse.
(9) Whether a party has a criminal record.
After considering evidence, the court shall issue a writtendetermination of security, bond, or other written guarantee supportedby findings of fact and conclusions of law.
(b) If a motion for change of judge or change of venue is filed, thecourt may, before a determination of change of judge or change ofvenue, consider security, bond, or other guarantee under this chapter.
As added by P.L.171-2001, SEC.12. Amended by P.L.68-2005,SEC.35.
IC 31-17-2-22
Custodial parent's violation of injunction or temporary restrainingorder considered in custody modification
Sec. 22. An intentional violation by a custodial parent of aninjunction or a temporary restraining order issued under IC 31-17-4-4or IC 31-17-4-5 (or IC 31-1-11.5-26 before its repeal) may beconsidered a relevant factor under section 8 of this chapter that thecourt must consider in a proceeding for a custody modification undersection 21 of this chapter.
As added by P.L.1-1997, SEC.9.
IC 31-17-2-23
Repealed
(Repealed by P.L.50-2006, SEC.9.)
IC 31-17-2-24
Notice of passport application for child
Sec. 24. (a) If either party to the custody order applies for apassport for the child, the party who applies for the child's passportshall do the following not less than ten (10) days before applying forthe child's passport:
(1) File a notice of the passport application with the clerk of thecourt that issued the custody order.
(2) Send a copy of the notice to the other party.
(b) The parties may jointly agree in writing to waive therequirements of subsection (a).
As added by P.L.1-1997, SEC.9.
IC 31-17-2-25
Petition for emergency placement with person other thannoncustodial parent; hearing
Sec. 25. (a) This section applies if a custodial parent or guardianof a child dies or becomes unable to care for the child.
(b) Except as provided in subsection (d), if a person other than aparent files a petition:
(1) seeking to determine custody of the child; or
(2) to modify custody of the child;
that person may request an initial hearing by alleging, as part of thepetition, or in a separate petition, the facts and circumstanceswarranting emergency placement with a person other than thenoncustodial parent, pending a final determination of custody.
(c) If a hearing is requested under subsection (b), the court shallset an initial hearing not later than four (4) business days after thepetition is filed to determine whether emergency placement of thechild with a person other than the child's noncustodial parent shouldbe granted, pending a final determination of custody.
(d) A court is not required to set an initial hearing in accordancewith this section if:
(1) it appears from the pleadings that no emergency requiringplacement with a person other than the noncustodial parent
exists;
(2) it appears from the pleadings that the petitioner does nothave a reasonable likelihood of success on the merits; or
(3) manifest injustice would result.
As added by P.L.146-2006, SEC.16.