Yes, there are two kinds of custody in the State of Indiana. There is sole custody, and joint custody.
Sole custody is when the court awards possession of the child(ren) to one parent. The custodial parent has responsibility for all decisions pertaining to the care of the child(ren), including religious training and educational choices. The noncustodial parent has visitation rights, but very little authority.
Joint custody implies that the parents can work together to make major decisions on behalf of their child(ren). The agreement can vary from situations where the parents have the children for approximately equal times, to a situation where one parent has actual primary physical possession of the child(ren), and the other parent has secondary possession and visitation with the child at specified times.
Yes, a joint custody agreement negotiated and maintained in good faith can have many advantages. The thought behind joint custody is that despite their divorce, the parents can still raise their child(ren) together. When it works, authority is shared, and periods of possession are liberal. Joint custody can be emotionally satisfying for all parties, as it keeps both the father and the mother involved in the children's lives. The children benefit greatly from observing civilized behavior between their parents. In addition, good communication and shared authority spare the children the confusion and anxiety which often results when they receive conflicting instructions and messages from their parents.
Generally, joint custody has to do more with physical placement and authority over the children's upbringing, then with their financial needs. Some parents agree not to exchange a set amount of child support, but prefer to work out the child's financial needs on an ad hawk basis. However, absent such an agreement, child support is controlled by the Indiana Child Support Guidelines.
When I first started my practice, child support was a matter of judicial discretion. The result was that children whose parents made a certain amount of money in Indianapolis could receive a substantially different amount of child support then children whose non-custodial parent worked in Terre Haute. In 1988, the government recognized the need to standardize child support awards. The result in this state was the Indiana Child Support Guidelines, and the Indiana Child Support Chart.
The guidelines tell judges and lawyers how to use the child support chart, which is a compilation of figures based on the combined total wages of the parents. After allowing for certain deductions, such as support awarded children from a previous relationship, and money spent by the parents for insurance coverage for the children, the total earnings of the parents are computed. Next, the percentage of the total earned by each parent is determined. That amount is applied to the chart to ascertain how much each parent should be contributing to the child's support. Work related child care expenses are factored into the equation. In addition, special medical and educational needs of individual children are considered. The final figure is the amount the judge has to order the non-custodial parent to pay unless there is very good reason to deviate from the child support chart. There is also a visitation discount for those non-custodial parents who see their children regularly.
If your spouse quit his/her job to avoid his/her financial obligations to the children, he/she is in for a nasty surprise. The Indiana Child Support Guidelines provide that an unemployed, or under-employed parent's obligation will be based on his/her "ability" to earn, not his/her actual paycheck. So, if he/she is a brain surgeon who got a job at McDonalds hoping that his/her obligation would be based on $6.00 per hour, he/she will have to figure out a way to pay a doctor's child support obligation on a hamburger flipper's wages.
Unless your spouse is disabled, and is unable to work or generate any kind of income, he/she will have to help. However, his/her contribution will be based on the assumption that he/she is only making minimum wage unless you can prove that he/she has the skills and training to make more, but is merely refusing to try.
The "provisional order" is only temporary. The judge can not make a permanent order until the" final hearing." However, unless you produce evidence which you did not, or were not able to present at the provisional hearing, it will be very difficult to persuade most judges that they made a mistake.
There are a number of professionals who can help you. Domestic relations mediators are trained to work with you and your spouse to help you reach an agreement. There are also counselors and other mental health professionals who can help you and your spouse make a decision before the dispute becomes an all out war. Your attorney can recommend someone in your area. You can also look for trained professionals in your telephone book. However, there is something to be said for a service provider who receives a recommendation from someone you trust. If you don't have an attorney, your family doctor, minister or school counselor are also good sources for advise on who can best help you.
Indiana Code 31-17-2-8 lists the factors the judge must consider in making a custody determination. They are:
The age and sex of the child; the wishes of the child's parent or parents; the wishes of the child, with more consideration given to the child's wishes if the child is at least 14 years old; the interaction and interrelationship of the child with the child's parents, the child's siblings, or any other person who may significantly affect the child's best interests; The child's adjustment to the child's home, school and community; the mental and physical health of all individuals involved; evidence of a pattern of domestic violence by either parent.
As a practical matter, judges must consider factors which are not listed by the statute. It is becoming more common for instance, for judges to consider the parents' respective wage earning abilities in making the custody award. The respective attitudes of the parties towards each other, too can be a consideration. A parent who makes it clear to the court that he/she will not cooperate with visitation without very good reason is more likely to loose the dispute. Criminal behavior, drug or alcohol abuse are also factors the judge will take into account. In short, the judge can consider anything he/she needs to consider to arrive at a decision that is in the child's best interest.
If your children are old enough to contribute information about their custody they can't testify, but they can talk to the judge in private. This is to help them avoid the destructive effects of having to say unkind things about either of their parents in front of them. Judges differ in their opinions about at what age a child's input can be useful. However, I have had judges who are willing to talk to very young children if the children seem reasonably able to observe their situation, and hence to provide useful information.
You can ask the court to hold him/her in contempt for violating the visitation order. A judge can make the offender pay your attorney's fees, or treat him/her to some time in the jug. However, judges are hesitant to take such harsh measures on the first offense. If the illegal behavior continues, the judge is more likely to inflict harsher punishment on the offender. In extreme cases, a judge can even take the lack of cooperation of the custodial parent as a reason to modify the custody order altogether.
Your local prosecutor's office is obliged to go after the offending parent for failure to pay child support. Either the prosecutor, or your private attorney can file a contempt citation, and cause your ex's wages to be garnished, for both the current child support and the arrears. Unfortunately, if your ex is self employed, or his/her whereabouts are unknown, child support can be very difficult to collect. In any case of contempt of court, the judge can force the offender to reimburse your legal expenses, and/or give him/her an all expense state paid vacation in the local can.