As noted in other blogs by Dixon & Moseley, P.C., as the dynamics of a family shift, so do the legal issues facing the family. Often, child care and financial support is given by grandparents or other family members if the biological parents are either unable or unwilling to raise their children.
Biological parents may place the responsibility in the hands of others to raise their children, and if this occurs, and the care giver meets the definition of de facto custodian1, they may petition the court for custody. In other words, with the right evidentiary showing (clear and convincing) that they have been a de facto custodial, third parties, including grandparents, may obtain the same legal status as a biological parent.
However, in order to be adjudicated as a de facto custodian, there is a requirement that the potential de facto custodian is required to present evidence to prove that they were indeed the primary care giver and financial supporter of the child for the prescribed period of time. In order to prove these elements, there are five main sources of evidence/information that are utilized in a majority of case.
All five will be explored below.
1. Witnesses
Often issues about de facto status can come down to he-said she-said between the potential de facto custodian and the biological parents. Having witnesses who have seen firsthand the potential de facto custodian with the child in a variety of circumstances allows the potential de facto custodian to prove his or her role as primary care giver.
Witnesses can include neighbors who see the potential de facto custodian interacting at a local park with the child, a fellow church member who witnesses the potential de facto custodian bringing the child to church and other functions each week, or family or friends who have observed the child-rearing on a regular basis in the normal context of life.
2. Receipts
Another essential element to proving de facto status is financial support of the child. Receipts for items that would be purchased by a care giver can give the court evidence of financial support. For example, clothes, strollers, car seats, medical bills and baby food would be evidence in support of the de facto custodian’s financial support of the child. Keep track of receipts showing financial support of the child as evidence of same in a potential custody dispute.
3. Photos
As the old saying goes, “a picture is worth a thousand words.” Having an array of pictures of the potential de facto custodian with the child are evidence of the time spent with the child and quality of the relationship and can go along way to demonstrating this in the evidence. For example, pictures from important holidays, such as Christmas or birthdays, show that the potential de facto was with the child during special moments, and pictures can add to the claim of being a primary care giver.
4. School and Medical Records
Potentially with older children, care giver involvement in school functions and medical appointments are another means to show status as a primary care giver. Having report cards or notes from a parent/teacher conference a potential de facto custodian attended shows the intense level of involvement, beyond an ordinary extended family member or friend.
Further, if the potential de facto custodian has taken the child to all medical appointments, these records are often helpful to show primary care giver status. It shows not only that routine appointments were the responsibility of the potential de facto, but also that if urgent or emergent appointments arose while in the potential de facto custodian’s care, they were present and responsible to get the child medical attention.
5. Communications
Often, a potential de facto custodian is taking care of a child and has lost (temporarily) communication with the biological parent(s). However, if the biological parent remains in contact, any evidence of e-mails or other communications between the potential de facto and the biological parent showing that the potential de facto custodian attempted to get the parent involved, and the parent would not, is helpful to show evidence of being a primary care giver.
This mitigates claims some parents may make that they were involved and did not relegate parenting to a third party, like their parents (the child’s grandparents), by the nature of the communications. Also, these can eliminate a corollary argument that the de facto kept the child from his or her parents, against their will.
Stated differently, if a parent is unwilling to care for his/her child and makes this communication to a potential defacto custodian, it only strengthens the de facto custodian’s argument that they are and have been the primary care giver, as the parent was not able or willing.
Proving status as a de facto custodian can be daunting and difficult, particularly if the time period is not consecutive or the child is young. However, having the understanding of potential evidence and proof of care, both physical and financial, can allow potential de facto custodians to build their case for themselves, allowing a better chance at receiving custody or parenting time.
We hope you find this information useful in your education de facto custodian evidentiary issues. Dixon & Moseley, P.C. attorneys practice throughout the State of Indiana. This blog post was written by Bryan L. Ciyou, Esq., and Jessica Keyes.
