For many of us, Grandparents played an important role in our lives. Now more than ever, grandparents seem to be actively involved in the raising of their grandchild(ren). In many instances, a grandparent may be raising their grandchild all together. If you have found yourself in such a situation, or you know someone who is, you may be wondering, “can I get custody of my grandchild?” This blog provides a brief overview for grandparents who are exploring options for obtaining custody of a grandchild they are raising.
A few things to point out before discussing the different options. First, Indiana makes all custody determinations based on “the best interests of the child.” There is a presumption, pursuant to the Supreme Court’s interpretation of the U.S. Constitution, that a “fit” parent is in the child’s best interest to have custody. Therefore, a grandparent has the burden of overcoming this presumption. In short, just know that in general, courts want a child to be with the parent first and foremost. You must be able to prove the need for custody beyond being able to give the child a better life.
With a brief background of the standard for obtaining custody, we can turn to a few options grandparents may have for obtaining custody of their grandchild(ren). These options include (1) adoption, (2) guardianship, (3) de facto custodian.
One way to obtain custody is adoption. With adoption, you would become, in the eyes of the law, the child’s “natural parent”. 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 as you have to show the parents have not had contact with the children for a year, nor have they paid support when they could have done so. With adoption, the children are truly on the same par as with natural parents.
Another route 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 terminate the guardianship, you will have the burden of overcoming the parental presumption and show what is in the children’s best interests. This is because, with a guardianship, parental rights are not severed like an adoption.
Finally, you may be able to obtain custody by becoming what is known as a “de facto custodian.” A de facto custodian is a person who has been the primary caregiver for, and financial support of, a child. Indiana has a specific statutory code that lists requirements an individual must meet to become a de facto custodian. The important thing to know is that if you have been the primary caregiver, and financial supporter of, a child, you may be able to become a de facto custodian.
While these cases are difficult, it’s important to remember that the law allows a neutral judge to decide these matters in the child’s best interests. This is where the assistance of a skilled attorney can help grandparents (or other third parties raising children) analyze their options and assemble the evidence to prove this to the court. This is a high evidentiary burden but one that can be met. Dixon & Moseley, P.C. advocates handle all types of child custody cases throughout the State, including adoptions, guardianships, and de facto custody cases. This blog is written for general informational purposes only. It is not legal advice or a solicitation for services. It is an advertisement.
