Indiana Family Law

The following sections are included because it may be the case that a victim of an online privacy invasion has recently divorced or separated, or is considering a divorce or separation, from the perpetrator spouse. Although evidence of misconduct is not appropriate in a divorce proceeding, the publication of intimate photographs or videos may well be considered in child custody proceedings, and considerations of domestic violence are appropriate when determining spousal support.

  1. Divorce

    1. Introduction

      Indiana is a no-fault divorce state.1 There are four grounds for dissolution of marriage: (i) an irretrievable breakdown of the marriage; (ii) the conviction of either of the parties, subsequent to the marriage, of a felony; (iii) impotence, existing at the time of the marriage; and (iv) the incurable insanity of either party for a period of at least two years.2

      Although “irretrievable breakdown” is not defined statutorily, courts have interpreted the term to mean without a “reasonable possibility of reconciliation.”3 When determining whether a reasonable possibility of reconciliation exists, courts will look at “the marital relationship as a whole ..., not the specific acts or conduct of the parties.”4

    2. Text of Statute(s)

        (1) Ind. Code § 31-15-2-3 – Grounds for decree

        Sec. 3. Dissolution of marriage shall be decreed upon a finding by a court of one (1) of the following grounds and no other ground:

          (1) Irretrievable breakdown of the marriage.

          (2) The conviction of either of the parties, subsequent to the marriage, of a felony.

          (3) Impotence, existing at the time of the marriage.

          (4) Incurable insanity of either party for a period of at least two (2) years.

    3. Cases

      Research is ongoing. A search of Indiana law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      Nothing relevant at this time.

    1. In re Marriage of Lang, 668 N.E.2d 285, 291 (Ind. Ct. App. 1996) (“[W]e do not tolerate the injection of fault into divorce proceedings.”) (citing In re Marriage of Stetler, 657 N.E.2d 395, 399 (Ind. Ct. App.1995)). 

    2. Ind. Code § 31-15-2-3. 

    3. Flora v. Flora, 337 N.E.2d 846, 850 (Ind. Ct. App.1975), disapproved of on other grounds in In re Marriage of Boren, 475 N.E.2d 846 (Ind. Ct. App. 1985). 

    4. Moore v. Moore, 654 N.E.2d 904, 905 (Ind. Ct. App. 1995). 

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  2. Child Custody

    1. Introduction

      A parent’s publication of intimate photographs of himself or herself in certain situations may provide some evidence against the parent’s mental or physical health that a court could weigh when making a custody award. In general, however, Indiana courts will focus primarily on the best interest of the child when determining custody.1

      Factors for determining the best interests of the child include the age and sex of the child; the parent's wishes; the child's wishes (with more consideration given to the child's wishes if the child is at least fourteen years old); the relationship that the child has with his or her parents, siblings, and any other person affecting the child's best interests; the child's adjustment to home, school, and the community; the health of the individuals involved; evidence of a pattern of domestic violence; and evidence that the child has been cared for by a de facto custodian.2

    2. Text of Statute(s)

        (1) Ind. Code § 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.

        (2) Ind. Code § 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.

        In making its determination, the court shall consider the factors listed under section 8 of this chapter.

        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.

    3. Cases

      Research is ongoing. A search of Indiana law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

      There have been a few situations in Indiana where it has come up in a custody case that one parent has sent intimate photographs of himself or herself to another adult under false pretenses. Indiana courts have weighed the significance of this type of evidence differently. For example, when determining a custody award, one Indiana trial court gave little weight to a father knowingly sending intimate pictures of himself to a woman he met online (who was actually the cousin of the mother) in light of significant evidence that the mother engaged in "a systematic and intentional series of events to drive a wedge between children and the father" that the court found disturbing, which included the mother staging the internet relationship between the father and her cousin “to get [the father] into trouble.”3 In contrast, another trial court found that a mother lacked adequate decision-making skills based on her correspondence, including her sharing of intimate pictures of herself, with a fictitious online identity created by the father’s second wife.4

    4. Practice Pointers

      Nothing relevant at this time.

    1. See Buchanan v. Buchanan, 267 N.E.2d 155, 158 (Ind. 1971) (“The custody and care of the children must be awarded with regard to the best interest of the children since the welfare of the children is paramount to claims or desires of the parents.”) (citing Wible v. Wible, 96 N.E.2d 571 (Ind. 1964); Watkins v. Watkins, 47 N.E.2d 606 (1943)); see also Hanson v. Spolnik, 685 N.E.2d 71, 78 (Ind. Ct. App. 1997) (“[A] parent's egregious violation of a custody order or behavior towards another parent, which places a child's welfare at stake, can support a trial court's modification of its custody order.”) (citations omitted); Owensby v. Lepper, 666 N.E.2d 1251, 1256 (Ind. Ct. App. 1996) (“The court may not issue a custody order for the purpose of punishing a parent.”) (citing Marshall v. Reeves, 311 N.E.2d 807 (Ind. 1974)). 

    2. See Ind. Code § 31-17-2-8. 

    3. See Krodel v. Krodel, No. 55A01-1201-DR-34, 2012 WL 5289854, at *5, *7–8 (Ind. Ct. App. Oct. 26, 2012) (unpublished disposition) (holding that the trial court’s awarding of full custody to the father was not clearly erroneous when supported by ample evidence and noting that the father’s “bad judgment” in emailing the cousin a naked picture of himself weighed “‘in only a minor fashion when determining the father’s mental and physical health" when such poor judgment was spurred on by a plan set in motion by the mother). 

    4. See B.M. v. M.M., No. 12A02–1107–JP–722, 2012 WL 926992 (Ind. Ct. App. Mar. 20, 2012) (unpublished disposition) (holding that the trial court did not err in awarding primary custody to the father when the guardian ad litem ("GAL") expressed concern regarding the mother’s decision-making based on her correspondence with a fictitious online identity created by the stepmother, including sharing semi-nude photographs of herself, even though the mother claimed that the father had hacked into her email account containing such photographs). 

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