Question:
Do you have any advice for a dad who really wants to divorce his wife but is scared of losing his children in the process?
How do I remain a part of my children’s lives during and after the divorce process?
Answer:
Filing for divorce is a difficult personal decision in any relationship, but especially hard when you face spending time away from your children.
You seem to be asking about how to file for divorce and avoid spending any time away from your sons. To file for divorce, you or your wife will have to file a Petition for Dissolution in the county in which you reside, in which you allege that there has been an irretrievable breakdown of your marriage.
Filing this petition opens a divorce case for your marriage with the court, as long as you and your wife have lived in Indiana, the state where I practice in, for at least 6 months, and in the county you’re filing in for 3 months. Once your case is opened, you will face some tough decisions on how to move forward with distributing your assets and liabilities, and in your case, more importantly, how to deal with custody of your sons.
There are two types of child custody in Indiana: 1) legal custody- who makes the big life decisions for your sons regarding education, health, religion, etc.; and 2) physical custody- who is physically with the children.
If you and your wife are able to communicate enough that you can try to make major decisions for your sons together, you could ask for joint legal custody.
As for physical custody, there is technically no such thing as “joint” physical custody in Indiana. One parent is named the custodial parent, and the other is named the non-custodial parent.
There is no presumption in Indiana law that the mother automatically gets to be the custodial parent or is favored by the court as the custodial parent; Indiana’s custody laws are gender-neutral, so you could ask the court to name you the custodial parent of your sons when you file for divorce.
The court will look to the best interests of the children to determine who should have physical custody of your sons and how parenting time should be devised. These factors include:
- The age and sex of the child;
- The wishes of the child’s parents;
- 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;
- The interaction and interrelationship of the child with the child’s parents, any siblings, and any other person who might significantly affect the child’s best interests (i.e. a girlfriend/boyfriend of either parent);
- The child’s adjustment to home, school, and community;
- The mental and physical health of all individuals involved; and
- Any domestic violence history by either party.
The court will weigh these factors, look at any evidence you and your wife present regarding what’s best for the children, and will determine who will be the custodial parent of your sons.
Alternatively, you and your wife can come to an agreement on the custodial arrangement for your sons. The non-custodial parent will be granted parenting time, which can vary greatly depending on your circumstances and work schedules, but will usually at a minimum be time with the children outlined under the Indiana Parenting Time Guidelines, and can include a 50/50 (or close to it) split of parenting time.
There is a wide variety of arrangements that parents and the court can make to ensure that both parents spend time with their children, depending on the schedules and capabilities of everyone involved.
Realistically, when you and your wife divorce, you will be spending some time away from your sons, even if you are named the custodial parent, because your wife would still have regular parenting time with your sons where they would most likely be with her overnight.
It’s a difficult situation for any family to go through, but you can try to do your best to ensure that you spend as much time as possible with your sons by requesting primary physical custody or by working out a schedule that would allow you maximum parenting time with your sons.
If you would like to discuss the issue further, Cordell and Cordell has men’s divorce lawyers in Indiana and we would be happy to schedule an initial consult with you to address any other questions or concerns you may have for your specific case.
Leslie Lorenzano is a Staff Attorney in the Indianapolis, Indiana office of Cordell & Cordell where she practices domestic relations exclusively. Ms. Lorenzano is licensed in the state of Indiana and the U.S. District Court Sothern District of Indiana. Ms. Lorenzano received her Bachelor of Arts in Sociology from Purdue University, and her Juris Doctor from the University of Arizona – James E. Rogers College of Law.
