A commonly shared belief in our society is that children are often best off in the care and custody of their biological parents. The Supreme Court has stated that one of the oldest fundamental rights in the United States is a parent’s right to the “care, custody, and control of their children.”1 While this right is fundamental, like most everything in life, it is not absolute. Situations arise in which a child’s biological parent(s) are no longer the best person to raise the child. In such a situation, a third-party can seek custody of the child in lieu of the biological parent. This blog explores who can seek third-party custody, the standard for obtaining third-party custody, and the presumption that must be overcome.
In Indiana, there are several ways in which a third-party can seek custody of child(ren). First, an individual who is a “de facto custodian” is able to bring an action for custody. Indiana code 31-9-2-35.5 defines de facto custodian as an individual who has been “the primary caregiver for, and financial support of, a child who has resided with the person.” Further, the statute imposes a minimum amount of time the individual must have cared for the child before they can be considered a de facto custodian. Specifically, an individual must care for a child who is less than three years old for a period of at least six months, and a period of one year for a child who is three or older.2 The important thing to know is that if have been the primary caregiver, and financial supporter of, a child, you may be able to become a de facto custodian.
Next, Indiana code 31-17-2-3(2) allows for any “person other than a parent” to file a petition to seek custody of a child. The Indiana Supreme Court has interpreted this statute to mean that any third-party individual has standing to bring an independent custody action.3 For example, in a recent decision, the Supreme Court made clear an aunt and uncle had standing to initiate an independent custody action. The Court found that the Aunt and Uncle “both qualify as a person other than a parent, and the custody action was not incidental to any of the aforementioned categories.” While there are exceptions to the rule, the general takeaway to know is that a third party has the ability to seek custody of a minor child.
Another avenue a third party can take to obtain custody is through adoption. With adoption, you would become, in the eyes of the law, the child’s “natural parent.”4 But, when you become the natural parent, all rights the biological parent had are severed forever. Due to the presumption discussed above, courts are hesitant to terminate a parent’s rights. If both biological parents consent to the adoption, the process may be fairly smooth. However, if the adoption is contested by either biological parent, it can become a bit tricky.
A final option for obtaining custody may be a guardianship. A guardianship is generally more of a temporary custody situation, but in certain circumstances, it can become permanent. With a guardianship, you do not become the child’s parent, but instead, simply the guardian. This will allow you to have custody of the child as long as you remain the guardian. However, if the parent ever moves to modify custody, you will have the burden of overcoming the parental presumption. This is because with a guardianship, the parental rights are not severed like an adoption.
Third-party custody cases are unique and extremely complex. The above-information is general in nature, and know that exceptions apply in almost every case. There are no clear-cut answers because third-party custody cases are highly fact sensitive. Such cases require a skilled attorney to navigate and guide you through the murky waters. Dixon & Moseley, P.C. attorneys practice throughout the State of Indiana and understand the complication associated with third-party custody matters. This blog post is written by Dixon & Moseley, P.C. advocates who handle all facets of third-party custody throughout the state. This blog is not intended as specific legal advice or a solicitation for services. It is an advertisement.