2014 Indiana Code TITLE 31. FAMILY LAW AND JUVENILE LAW ARTICLE 17. FAMILY LAW: CUSTODY AND VISITATION RIGHTS CHAPTER 2. ACTIONS FOR CHILD CUSTODY AND MODIFICATION OF CHILD CUSTODY ORDERS
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IC 31-17-2
Chapter 2. Actions for Child Custody and Modification of
Child Custody 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 Civil
Procedure.
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 a
determination 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Repealed
(Repealed by P.L.50-2006, SEC.9.)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 filed
under 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 for
hearing.
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 law
and 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 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.
IC 31-17-2-8.3
Supervised parenting time; conviction of crime involving domestic
or family violence; batterer's intervention program
Sec. 8.3. (a) This section applies if a court finds that a
noncustodial parent has been convicted of a crime involving domestic
or family violence that was witnessed or heard by the noncustodial
parent's child.
(b) There is created a rebuttable presumption that the court shall
order that the noncustodial parent's parenting time with the child must
be supervised:
(1) for at least one (1) year and not more than two (2) years
immediately following the crime involving domestic or family
violence; or
(2) until the child becomes emancipated;
whichever occurs first.
(c) As a condition of granting the noncustodial parent
unsupervised parenting time, the court may require the noncustodial
parent to complete a batterer's intervention program certified by the
Indiana coalition against domestic violence.
As added by P.L.133-2002, SEC.33. Amended by P.L.68-2005,
SEC.32; P.L.162-2011, SEC.12.
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 clear
and convincing evidence that the child has been cared for by a de
facto custodian.
(b) In addition to the factors listed in section 8 of this chapter, the
court 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 the
de facto custodian.
(4) The circumstances under which the child was allowed to
remain in the custody of the de facto custodian, including
whether the child was placed with the de facto custodian to
allow 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 facto
custodian, the court shall make the de facto custodian a party to the
proceeding.
(d) The court shall award custody of the child to the child's de
facto custodian if the court determines that it is in the best interests
of the child.
(e) If the court awards custody of the child to the child's de facto
custodian, the de facto custodian is considered to have legal custody
of 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 to
ascertain 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 purposes of
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 professional
personnel even if the professional personnel are not employed on a
regular basis by the court. The advice shall be given in writing and
made available by the court to counsel upon request.
(b) Counsel may call for cross-examination of any professional
personnel 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 of
custody under IC 31-15, this chapter, IC 31-17-4, IC 31-17-6, or
IC 31-17-7, the court:
(1) requires supervision during the noncustodial parent's
parenting time privileges; or
(2) suspends the noncustodial parent's parenting time privileges;
the court shall enter a conditional order naming a temporary
custodian for the child.
(b) A temporary custodian named by the court under this section
receives temporary custody of a child upon the death of the child's
custodial parent.
(c) Upon the death of a custodial parent, a temporary custodian
named by a court under this section may petition the court having
probate jurisdiction over the estate of the child's custodial parent for
an order under IC 29-3-3-6 naming the temporary custodian as the
temporary 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 for
child
Sec. 12. (a) In custody proceedings after evidence is submitted
upon the petition, if a parent or the child's custodian so requests, the
court may order an investigation and report concerning custodial
arrangements for the child. The investigation and report may be made
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 subject
of a child in need of services case under IC 31-34, the
department of child services.
(4) A private agency employed by the court for the purpose.
(5) A guardian ad litem or court appointed special advocate
appointed for the child by the court under IC 31-17-6 (or
IC 31-1-11.5-28 before its repeal).
(b) In preparing a report concerning a child, the investigator may
consult any person who may have information about the child and the
child's potential custodian arrangements. Upon order of the court, the
investigator may refer the child to professional personnel for
diagnosis. The investigator may consult with and obtain information
from medical, psychiatric, or other expert persons who have served
the child in the past without obtaining the consent of the parent or the
child's custodian. However, the child's consent must be obtained if
the child is of sufficient age and capable of forming rational and
independent judgments. If the requirements of subsection (c) are
fulfilled, 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 is
hearsay or otherwise incompetent.
(c) The court shall mail the investigator's report to counsel and to
any party not represented by counsel at least ten (10) days before the
hearing. The investigator shall make the following available to
counsel 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 the investigator
under subsection (b).
(3) The names and addresses of all persons whom the
investigator has consulted.
(d) Any party to the proceeding may call the investigator and any
person whom the investigator has consulted for cross-examination.
A party to the proceeding may not waive the party's right of
cross-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 if the
court finds that an award of joint legal custody would be in the best
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 this
chapter does not require an equal division of physical custody of the
child.
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 custody
under section 13 of this chapter would be in the best interest of the
child, the court shall consider it a matter of primary, but not
determinative, importance that the persons awarded joint custody
have agreed to an award of joint legal custody. The court shall also
consider:
(1) the fitness and suitability of each of the persons awarded
joint custody;
(2) whether the persons awarded joint custody are willing and
able to communicate and cooperate in advancing the child's
welfare;
(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) whether the child has established a close and beneficial
relationship 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 the
home 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 obtain
counseling for the child under such terms and conditions as the court
considers 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 of
the custody order; and
(2) as provided in subsection (b);
the custodian may determine the child's upbringing, including the
child's education, health care, and religious training.
(b) If the court finds after motion by a noncustodial parent that, in
the absence of a specific limitation of the custodian's authority, the
child'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 if
the court finds that, in the absence of the order, the child's physical
health might be endangered or the child's emotional development
significantly 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 the
custodial 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 necessary
travel and other expenses incurred by any person whose presence at
the hearing the court considers necessary to determine the best
interests 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's welfare
that the record of any interview, a report, or an investigation in a
custody proceeding not be a public record, the court may make an
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 order
unless:
(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 factors
that 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 the factors
listed under section 8 of this chapter.
(c) The court shall not hear evidence on a matter occurring before
the last custody proceeding between the parties unless the matter
relates to a change in the factors relating to the best interests of the
child as described by section 8 and, if applicable, section 8.5 of this
chapter.
As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.9.
IC 31-17-2-21.1
Delegation of parenting time during deployment; automatically
terminates upon return
Sec. 21.1. (a) Upon a motion of a parent who has received military
deployment orders, the court may delegate the parent's parenting
time, or a part of the parent's parenting time, during the time the
parent is deployed to a person who has a close and substantial
relationship with the parent's child if the court finds that delegating
the parent's parenting time is in the best interests of the child.
(b) If a court delegates parenting time under subsection (a), the
order delegating parenting time automatically terminates after the
parent returns from deployment.
(c) A court may terminate an order delegating parenting time if the
court determines that the delegated parenting time is no longer in the
best interests of the child.
As added by P.L.55-2012, SEC.3.
IC 31-17-2-21.2
Military duties; expedited hearing; allow evidence by electronic
means
Sec. 21.2. (a) Upon a motion of a parent who has received military
temporary duty, deployment, or mobilization orders, the court shall
hold an expedited hearing to determine or modify the custody of a
child or parenting time with a child if the military duties of the parent
have a material effect on the parent's ability to appear in person at a
regularly scheduled hearing concerning custody or parenting time.
(b) Upon a motion of a parent who has received military
temporary duty, deployment, or mobilization orders, the court shall,
with reasonable notice, allow the parent to present testimony and
evidence by:
(1) telephone;
(2) video teleconference;
(3) Internet; or
(4) other electronic means approved by the court;
in a custody or parenting time proceeding if the military duties of the
parent have a material effect on the parent's ability to appear in
person at a regularly scheduled hearing concerning custody or
parenting time.
As added by P.L.55-2012, SEC.4.
IC 31-17-2-21.3
Parent's active duty service not a factor; temporary modification
of custody
Sec. 21.3. (a) A court may not consider a parent's absence or
relocation due to active duty service as a factor in determining
custody or permanently modifying a child custody order.
(b) If a court temporarily modifies a custody order due to a
parent's active duty service, the order temporarily modifying the
custody order terminates automatically not later than ten (10) days
after the date the parent notifies the temporary custodian in writing
that the parent has returned from active duty service. This subsection
does not prevent a court from modifying a child custody order as
provided under this article after a parent returns from active duty
service.
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 the
court 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 court
makes a finding under subdivision (1), (2), (4), or (7) by clear and
convincing 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 other
guarantee. In making a determination under this section, the court
shall consider the following:
(1) Whether a party has previously taken a child out of Indiana
or another state in violation of a custody, parenting time, or
visitation order.
(2) Whether a party has previously threatened to take a child out
of Indiana or another state in violation of a custody, parenting
time, 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 Indiana
to 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 in
Indiana, such as whether the party is unemployed, able to work
anywhere, or is financially independent.
(7) Whether a party has engaged in planning that would
facilitate removal from Indiana, such as quitting a job, selling
the party's primary residence, terminating a lease, closing an
account, liquidating other assets, hiding or destroying
documents, applying for a passport, applying for a birth
certificate, or applying for school or medical records.
(8) Whether a party has a history of marital instability, a lack of
parental cooperation, domestic violence, or child abuse.
(9) Whether a party has a criminal record.
After considering evidence, the court shall issue a written
determination of security, bond, or other written guarantee supported
by findings of fact and conclusions of law.
(b) If a motion for change of judge or change of venue is filed, the
court may, before a determination of change of judge or change of
venue, 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 restraining
order considered in custody modification
Sec. 22. An intentional violation by a custodial parent of an
injunction or a temporary restraining order issued under IC 31-17-4-4
or IC 31-17-4-5 (or IC 31-1-11.5-26 before its repeal) may be
considered a relevant factor under section 8 of this chapter that the
court must consider in a proceeding for a custody modification under
section 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 a
passport for the child, the party who applies for the child's passport
shall do the following not less than ten (10) days before applying for
the child's passport:
(1) File a notice of the passport application with the clerk of the
court 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 the
requirements of subsection (a).
As added by P.L.1-1997, SEC.9.
IC 31-17-2-25
Petition for emergency placement with person other than
noncustodial parent; hearing
Sec. 25. (a) This section applies if a custodial parent or guardian
of a child dies or becomes unable to care for the child.
(b) Except as provided in subsection (d), if a person other than a
parent 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 the
petition, or in a separate petition, the facts and circumstances
warranting emergency placement with a person other than the
noncustodial parent, pending a final determination of custody.
(c) If a hearing is requested under subsection (b), the court shall
set an initial hearing not later than four (4) business days after the
petition is filed to determine whether emergency placement of the
child with a person other than the child's noncustodial parent should
be granted, pending a final determination of custody.
(d) A court is not required to set an initial hearing in accordance
with this section if:
(1) it appears from the pleadings that no emergency requiring
placement with a person other than the noncustodial parent
exists;
(2) it appears from the pleadings that the petitioner does not
have a reasonable likelihood of success on the merits; or
(3) manifest injustice would result.
As added by P.L.146-2006, SEC.16.
IC 31-17-2-26
Submissions to the court; court requests for information
Sec. 26. (a) If a person files a petition to establish or modify
custody of a child, any person who:
(1) is a party to the custody proceeding; and
(2) has knowledge that:
(A) a party to the custody proceeding has been determined to
be a perpetrator of a substantiated report of child abuse or
neglect;
(B) the child named in the petition has been the subject of a
substantiated report of child abuse or neglect;
(C) the child named in the petition has been determined to be
a child in need of services under IC 31-34; or
(D) the child named in the petition has been involved in an
informal adjustment under IC 31-34-8;
shall submit to the court in writing under seal that a party to the
custody proceeding is a person described in subdivision (2)(A) or the
child named in the petition is a child described in subdivision (2)(B),
(2)(C), or (2)(D).
(b) A court reviewing a petition to establish or modify custody of
a child may request information from the department of child services
regarding a petition or proceeding described in subsection (a)(2). The
department shall provide a response under seal to the court's request
for information not later than ten (10) days after the department
receives the court's request for the information.
As added by P.L.239-2013, SEC.4.
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