Clearly, natural and adoptive parents have a fundamental right to raise their children.1 However, given these constraints, the Indiana Courts have four important tools by statues and one by caselaw to utilize to assist third parties to obtain “custody” of children where their well-being depends on it.
The reality in the United States is that millions and millions of children are primarily raised by people other than their parents, mostly by grandparents and relatives. Millions more are raised for periods of their childhood by third parties such as neighbors. To balance the fundamental rights with a child’s mental and emotional ties to a third-party caregiver, there are four ways a third party may obtain “custody” of a child. This blog post explores these legal remedies.
Grandparents. After the Troxel case, the Legislature passed a grandparent visitation act. This act gives grandparents the right to have visitation with their grandchildren as allowed for by their parents. The practical importance of this statute gives grandparents a little independent right to visit their grandchildren and may be inconsistent with third-party care. However, it is required to and so is limited because of the Troxel case.
De Facto Custodians. The strongest statute in Indiana to allow third parties to obtain legal status by the passage of time in provides the lion’s share of the care and nurture of children is the de facto custodian statute. This allows for a person who has provided six months of care and nurture of a child to be adjudicated a de facto custodian and obtain custody. There is a significant limit to this statue at this time in that while a person who is adjudicated as a de facto custodian does not get parenting time if he or she does not get custody. This may be because of Legislative intent or unintended omission.
Guardians. A closely related situation is where a third person is given guardianship by a parent or is left with a child. He or she may obtain a guardianship over the child and maintain it to provide for the legal right to care for the child. A guardianship normally terminates when a natural parent request, but depending on the passage of time, a guardian may be a de facto custodian and seek custody or maintain it under caselaw of the Indiana Supreme Court.
Interwoven third-parties and children. The final category who may obtain custody is a third party who has provided such care and nurture for a child that to sever the bond would result in psychological harm to the child.2 Such a third party may maintain custody, if challenged, by caselaw, “permanent” guardianship, or by being adjudicated a de facto custodian and being awarded custody.
Thus, a third party may keep or obtain custody of a child in his or her care under a number of legal tools in Indiana. This all assumes a natural parent raises the issue or a legal adjudication is necessary for school, medical and related purposes. This is the delicate balance struck in law between the rights of third parties and children who they raise, given a parent's fundamental rights to raise his or her children.
This blog was written by Dixon & Moseley, P.C. attorneys who handle third-party custody cases throughout the state of Indiana. This blog post is written for general educational purposes only. It is not a solicitation for legal representation or legal advice. This is an advertisement.
