Different ways to obtain custody of a minor child

In Indiana, there are 3 competing theories to obtaining custody of a minor child. The three ways to obtain custody are: first, the natural parent presumption (lawful adoptions will fall in line with this custody theory as well); second, guardianships; and third, de facto custodians.

There is a statutory presumption, meaning that unless other evidence is presented to the contrary, a fact is presumed in the eyes of the law, that a natural parent (a biological parent) has the right to raise his or her child. The United States Supreme Court has ruled that not only is there a presumption the natural parent shall raise his or her child, but also that it is a fundamental right of a natural parent to do so.1 Therefore, a natural parent takes precedence over a third party, in having a right and duty to raise his or her child.

However, there are exceptions. The first exception is a guardianship. A parent may legally and temporarily sign over guardianship of his or her child to a third party, such that the third party may stand in the shoes of a parent, in the natural parent’s absence.2 Guardianships generally terminate when the natural parent returns, and there is no other need for the guardianship to continue. To answer the question of when a guardianship turns into a custody issue, and/or if any need for the guardianship continues, notwithstanding a natural parent’s reappearance, the Indiana Court of Appeals outlined a test:

First, the Indiana Court of Appeals reiterated that there is a presumption that it is in a child’s best interests to be placed in the care and custody of the natural parent.

Second, that presumption is rebuttable, with evidence showing that the natural parent is either (a) unfit, (b) long acquiesced to the guardianship (agreed to it for some years generally), or (c) voluntarily relinquished the custody of the child to the guardian, such that the child’s affections to the third party are so intertwined that to break such a bond would emotionally hard and/or endanger the child

And finally, if one or more of (a), (b), or (c) above is presented into evidence, that remaining with the third party guardian IS in the child’s best interests.3

There is also a third theory of custody, a relatively new concept (at least in the long history of the law), called “de facto custodian.” Indiana passed the de facto custodian laws in 1997, therefore, there are few cases which really analyze where and how the de facto custodian fits in with guardianship laws. However, there is clearly some overlap.

A de facto custodian is a person who: is the primary care giver and financial support for a child who resides with them for at least 6 months if the child is less than 3 years old, or resides with them for 1 year if the child is over 3 years old.4 If a third party is able to prove that the child has resided with him or her for the required amount of time, and that he or she has been the primary emotional and financial support for the child, the third party may motion the court for full and permanent custody of a child. The court, in a custody proceeding, must give consideration to a de facto custodian and award custody either to the parent(s) or the de facto custodian, whichever is in the child’s best interests.

We hope that this blog has been helpful in understanding the three competing, and sometimes overlapping, theories of child custody. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by Attorney, Lori Schmeltzer.

Troxel v. Granville, 120 S.Ct. 2054 (2000)

Indiana Code § 29-3-12-1(c)(4)

Hendrickson v. Binkley, 316 N.E.2d 376, 377 (Ind.Ct.App 1974)

Indiana Code § 31-9-2-35.5