Where the is a dispute about a child, from its biological parent to impermissible removal of a child from his or her home to return, there are numerous statutory laws that apply to ensure the child’s best interests are met and/or the proper court hears the matter. This blog is written to summarize those for you to better understand questions you might want to ask your counsel.
The Divorce Act. One of the most commonly applicable bodies of law is found under the Indiana Divorce Act statutes. This statute directs that a trial court make a child’s best interest in determining custody. In addition, it promotes stability and requires a substantial change in circumstances to allow custody to be modified.
The Paternity Act. If a child is born out of wedlock, the Indiana Paternity Act applies. This allows for paternity to be established and also provides for the initial determination of child custody and modification. Indiana trial courts are also charged with looking out for a child’s best interests under this statute.
The Adoption Act/Termination of Parental Rights. The adoption statutes and those that allow a court to terminate a parent’s rights go hand in hand. If a child is to be adopted, the natural (or potentially former adoptive parent) rights must be terminated. Typically, a trial court will not allow a natural parent’s right to be terminated merely for not being involved. The courts usually view an uninvolved parent is better than no parent at all. Again, adoption and termination of parent rights are founded upon the child’s best interests.
The Uniform Child Custody Jurisdiction Law. The uniform child custody jurisdiction act or law (“UCCJA” or “UCCJL”) is codified in various states. This determines which court (where there are two or more involved in different states) should make a decision about child custody. Typically, the child’s “home state” is determined and remains where the case is heard until neither parent or the child lives in the state or the “home state” court defers to a different court because it is more convenient (i.e., more information about the child’s best interests is located in that state). This body of law even has some implications in international cases.
Child in Need of Services Laws. Parents have a fundamental constitutional right to raise their children free from state interference. However, where the parent’s care rises (of falls) to the level of neglect, the state may step in by the Department of Child Services, investigate, and file a Child in Need of Services (“CHINS”) case if necessary to protect the child. Typically, the parents are provided services to aid with their parenting shortfalls in order to bring the level of care to a minimum. If the parents do not cooperate, it is possible the state may move to terminate their parental rights.
Child Delinquency Laws. Where a child commits an act that would be criminal if committed by an adult, he/she may be taken into custody by the state and charged as a juvenile delinquent. Upon adjudication as a delinquent, the child may face a number of remedial services to help him or her become a better citizen living within the laws, which may include detention. In cases of serious acts of violence, particularly in older children, the State may seek to waive the juvenile into adult court and try him or her as an adult.
The Parental Kidnapping Prevention Act. This is a federal law enacted in 1980 to establish a national (or federal) standard for determining which court has child custody jurisdiction. The act uses similar language as the UCCJL, and provides preference to court where the child has resided for the last six months, commonly known as the child “home state.” This, like the UCCJL, was adopted to stop a parent from going to a different state and initiating child custody litigation for purposes of obtaining a favorable court ruling in what is know as forum shopping.
The Hague Convention on the Civil Aspect of Child Abduction. To address children improperly removed from one country and taken to another to avoid an unfavorable custody position, there is a Hague treaty on child who is taken from one country to another to aid in return. The countries must be signatories to the convention and have it ratified. If this is the case, then the two countries communicate and facilitate return of the child to his or her country of “habitual residence.” The age where is treated an adult and no longer subject to the convention is 16 years of age.
Center for Missing and Exploited Children. Where countries are not bound by the Hague Convention, the National Center for Missing and Exploited Children serves as the United States voice to other countries to provide information about the child and aids individuals in helping work with the foreign country. Many countries in Africa and the Middle East are not signatories to the Hague Conventions.
These are the bodies of law that may apply to any given custody case. With each of these statutory schemes, there are numerous cases that clarify or develop this law. We hope this blog post provides you with general background information of the laws that may apply in any custody case.
This blog post was written by attorneys at Dixon & Moseley, P.C. It is for general educational purposes and is not intended to be specific legal advice or a solicitation for legal services. Dixon & Moseley, P.C. advocates practice throughout the State of Indiana.