Three Requirements for a Caretaker to Obtain Custody of a Child He/She is Rearing

In the past 40 years, the number us U.S. Children living in a grandparents home and being cared for by grandparents had more than doubled.¹ This does number does not include the significant numbers of children being reared by friends and other family. With infants and toddlers, the caretaker may become the child’s primary attachment.

However, parents, even ones who effectively abandon his/her child and come back later, have a fundamental right under the United States Constitution to raise their children and seek their return. Under present Indiana law, a grandparent or third party may obtain custody by taking three steps by the controlling statutes and case law.

First, the caretaker must show bring a suit to establish he or she is a “de facto” custodian under Indiana law, by intervening in a current case with a parent or parents or bringing a law suit against the parent(s).

Second, at the hearing on de facto custody, the third party must show by clear and convincing evidence that he or she has been the primary source of care, nurture, and support for at least six months for a child under three years old or one year for an older child², which may be continuous or aggregate time.

Third, even if the grandparent or third party does so, he or she must show it is in the child’s best interests that the de facto custodian has custody.³ If this is the case, the natural parents may have parenting time and/or visitation and be required to pay child support.

Nevertheless, if the de facto custodian does not establish that it is in the child’s best interests he or she have custody, the present status of the law does not allow the de facto custodian to have any visitation or parenting time.⁴ A grandparent, in narrow circumstances, may be entitled to visitation.⁵

For this reason, in this type of litigation, a de facto custodian may nevertheless lose all contact with the child he or she has raised. These cases are factually and legally complex and presenting the relevant evidence at trial is crucial.

This blog post is written by attorneys at Dixon & Moseley, P.C. for general educational purposes. We hope it provides you with a background to help you understand this matter. Dixon & Moseley, P.C. attorneys practice throughout the State.

1. U.S. Census Bureau 2010.
2. Ind.Code § 31-9-2-32.
3. Ind.Code § 31-17-2-8, 8.5 (Dissolution Act).
4. T.H. and C.H. v. R.J. and K.J., ___ N.E.3d ___ (Ind.Ct.App. December 18, 2014).
5. Ind.Code § 31-17-5-0.2.