Today, millions of children are being raised by grandparents, friends, neighbors, and sometimes, total strangers. This trend is growing each year. In this situation, these individuals acting as “parents” have no legal rights to the children they are raising, despite the fact they are providing for all aspects of their physical and emotional well-being. Practically speaking, this reality can create a multitude of problems for the caretakers, from enrolling the children in school to obtaining health care. All the while, the children are bonding with this caregiver like a biological parent. However, sometimes a parent just shows up years later to “pick-up” the child and resume parenting—and parents have a fundamental constitutional right to raise their children over anyone else as a general matter and may obtain police assistance to retrieve their children. This blog explores the legal options available to such third parties to help them keep “custody” of the children they are raising or see and visit with them through parenting time, visitation or custody.
One of the oldest existing legal tools to obtain “custody” of a child is a guardianship. This gives a third party, such as a grandparent, custody, and control of the children where a parent is absent until it terminates and effectively provides the guardians with the same legal rights as a parent. Often, when a Child in Need of Services Case is in place and the parents do not obtain services to become fit parents for the children, the CHINS maybe terminated with a grandparent (who has placement of the child as a Ward of the state) or relative, petitioning for a guardianship and it being granted. When this relative is awarded guardianship in a separate proceeding, the CHINS closes. Guardianship actions also may be brought on their own by any third party who contends the parents are unfit and they wish to care for the children. The guardianship, if granted, could only be terminated if the parents become fit, prove it in court, and it in the child’s best interests the guardianship terminates. Where the guardianship has been in place for a long time and the child has bonded and attached to the Guardian, this may become effectively a permanent situation until the children reach the age of majority. This exists under the probate laws in Indiana and may be the right fit for your case.
A more recent legal development is the concept of a de facto custodian in paternity and divorce cases. A person may be a de facto custodian where he or she has provided six months of care and financial support for a child living with him/her; for children three and older, the third party must have provided one year of support and care for children. Potential de facto custodians may seek custody in paternity or divorce cases. If the person is found to be a de facto custodian and it is in the child’s best interests, the court may award the de facto custodian physical and legal custody. In these cases, the parents likely would be given parenting time by the de facto custodian (or visitation if they pose a risk of harm to the child), as well as pay the de facto custodian child support. This tool is different from a guardianship and presupposes a divorce or paternity action exists, but generally effectuates the same result— “custody” in the third-party. The facts of each case may limit which option, guardianship or de facto custodian, is available to a litigant.
The third, but limited choice, is visitation. Only grandparents may seek visitation of their grandchildren (unless one of the other remedies discussed in this blog applies to grandparents, which is often the case) under the Grandparent Visitation Act. However, given the fundamental right of a parent to raise his or her children, grandparents only may be awarded occasional and infrequent visitation. This is typically the only (and sometimes last) resort for grandparents who cannot obtain “custody” by a guardianship or become de facto custodians.
The final—perhaps ultimate—way to obtain “custody” is through adoption. Adoption severs one or both parents’ rights. Typically, an adoption may be brought by a step-parent where the biological parent has been absent if the removed parent consents or his or her consent is not needed because the parent is unfit and there has been the passage of time, lack of contact with the child, or failure to pay support. In other cases, an adoption may be granted where both parents are unfit and abandon the child(ren). Adoptions are more complex legal processes because this legal process and remedy sever the biological parent’s fundamental right to raise his or her child. Because of such, for instance, a home study of the potential adoptive parents is required because of the severity of the legal action, if granted. Specifically, an adoption substitutes the biological parents, by terminating their rights, for the adoptive parents who then stand as if the children were their biological children.
These are tools under Indiana law for any third parties who are raising grandchildren or children of others to ultimately meet the child’s needs, particularly in our society where parents are not able to parent on a growing basis for reasons ranging from addiction to mental health issues. The takeaway from this blog is there are remedies for children who are left in the care of third parties to maintain consistency and bonding they form with these caretakers to meet their best interests; and there are legal tools for third parties to be engaged to obtain these remedies—all while allowing Indiana trial court judges to balance and protect a biological parent’s fundamental constitutional right to raise his or her child. This blog was written by attorneys at Dixon & Moseley, P.C. who handle the spectrum of family law cases that arise in Indiana. This blog is for educational purposes only and is not intended as legal advice or a solicitation for legal services. It is an advertisement.