A commonly shared belief in our society is that children are often best off in the care and custody of their biological parents. However, it is becoming increasingly frequent for kids to be raised by someone other than biological parents. Common reasons include biological parents getting sick, becoming incarcerated, or simply having a difficult time in their role as a parent. Often times, third parties that care for children do so without legal advice or turning to the court system. Things can become problematic if medical treatment, school issues, or legal issues arise with these children. If the biological parents are no longer in the picture, individuals caring for children may need to seek court intervention to obtain legal rights over the child(ren). There are several legal avenues you can take to obtain rights over the children. In this blog, we explore the topics of custody and guardianships, as well as the difference between them.
Under Indiana law, there are multiple approaches a third party can take to obtain legal rights over a child(ren). These different approaches fall into two broad categories: third party custody and guardianships. Many people use these two terms interchangeably; yet, they are distinct and separate causes of action. Albeit, both custody and guardianships are ultimately designed to convey broad powers to a third party; similar to the powers a biological parent would have. While similar, it is important to note that there are differences in the duties imposed on guardians as opposed to third party custodians.
In order for a third party to obtain custody in Indiana, the third party must first overcome a presumption that it is in the best interests of the child to be placed in the custody of their biological parent. Thus, a third party is required to rebut this presumption by showing that it is in the best interests of the child to be in the third party’s custody. However, the presumption that a child’s best interests are served by placement with the natural parent may not be rebutted simply by showing that a third party could provide the better things in life for the child.
Once this presumption in favor of the biological parent has been rebutted, the trial court then engages in a general best interests analysis. Pursuant to statute, two requirements must be met to modify a custody order. First, the modification must be “in the child’s best interests.” Second, there must be a substantial change in one of the child custody factors located in Indiana Code section 31-17-2-8. Thus, in short, a third party seeking custody must: (1)overcome the biological parent presumption; (2) show that custody modification is in the best interests of the child; and (3) that there has been a substantial change in one of the child custody factors.
A guardianship, on the other hand, generally refers to a legal relationship in which a third party is empowered to act for the benefit of the child. Typically, guardianship is 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. In both guardianships/third party custody cases, a trial court will only grant either if it is in the best interests of the child(ren).
Child custody cases and guardianship cases are unique and extremely complex. The above-information is general in nature, and know that exceptions apply in almost every case. Unfortunately, there are no clear-cut answers because both custody cases and guardianships 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 custody and guardianship 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.