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  • Colin Koons

Modification of Custody - Child's Wishes

In Indiana custody disputes, the judge can only review evidence that is related to the best interests of the children. Specifically, the Court will use all relevant facts and testimony, including, but not limited to, the following factors:

  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

  9. A designation in a power of attorney of (A) the child's parent; or (B) a person found to be a de facto custodian of the child.

These factors are found in IC 31-17-2-8. If you have a pending a court hearing in which you're hoping to represent yourself, the judge is required to hold you to the same standard and expect the same as a trained attorney. You will be at a disadvantage if the other side has hired legal counsel.

Since the children's wishes are one of the factors, the judge can review your children's opinions. However, your children are not likely of age to be considered "competent" to testify in court, and you cannot repeat what they have told you ... that's hearsay. However, you could request the judge to interview the child in chambers to find out the child's wishes, which is described as an "in camera" interview. IC 31-17-2-9. You could also request a guardian ad litem or court appointed special advocate to be appointed to conduct an independent investigation and report back to the judge. IC 31-17-2-12. The statute provides the "special advocate" with the unique opportunity to bypass the hearsay rule and tell judge what your children want.

Child custody cases are extraordinarily fact-sensitive, and you will have to comply with the Indiana Rules of Evidence for each question or fact. You should absolutely seek an attorney for any custody or parenting time modification as there will be complex evidentiary and procedure issues. In addition, in camera or guardian ad litem appointments are not automatic. You will be expected to provide reasons through the statutory citations and case law references to support your request.

If you are going to go without an attorney, please review the materials at the following link, Indiana Court Forms, where you can find helpful information and "fill-in-the-blank" pleadings. Please remember that these do not substitute for legal advice.

Call our offices at (317) 721-8044 to discuss with a family law attorney. You can also click the link below to schedule a virtual appointment via video conference.

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