Third Party Custody: What Are De Facto Custodians? And How Can I Become A Child’s De Facto Custodian?

Unfortunately, situations arise in our society where a child’s biological parent(s) may no longer be the best person to raise the child. If such a situation is present, there are different avenues a third-party can utilize in order to seek custody of a child in lieu of the biological parent. One of the ways in which a third-party can seek custody of a child is being declared the child’s “de facto custodian.” But you may be wondering “what is a de facto custodian?” or “how can I become a de facto custodian?” In this blog, we try to answer these questions while providing a general overview of the law surrounding de facto custodians in Indiana.

In Indiana, statutory code defines a “de facto custodian” as a person who has been the primary caregiver for, and financial supporter of, a child who has resided with the person for at least six months if the child is less than three years of age or one year if the child is at least three years of age.¹ For example, say your friend leaves her five year old child in your care, and ever since then, you have been the child’s primary caregiver. In order to meet the initial requirements to be deemed a de facto custodian, you must have provided primary care for the child for at least one year. The one-year period does not necessarily have to be an uninterrupted calendar year of providing primary care for a child. For example, the Indiana Court of Appeals found that an aunt and uncle met the requirements to be deemed de facto custodians because the children resided with them a “majority of the time for unspecified non-consecutive periods over the preceding two years.”²

A caveat to the time-period requirement for being deemed a de facto custodian is that any period after a child custody proceeding has been commenced may not be included in determining whether the child has resided with the person for the required minimum period.³ Our Court of Appeals recently clarified this exclusionary provision, stating “that the time period relevant to establishing a de facto custodianship excludes any period of time after a child custody proceeding has been commenced and while it is pending statutory requirement.”⁴ For example, say that a mother and father are currently in the middle of a custody modification dispute that has been ongoing for the past six months. Now, say that during those six months you have been watching the child. Precedent dictates that in such an instance, that six-month time period you watched the child could not be used to establish your status as a de facto custodian.

In short, the intent of the de facto custodian statute is to clarify that a third party may have standing in certain custody proceedings, and it may be in the child’s best interests to be placed in that party’s custody.⁵ Thus, if you can establish that you are a de facto custodian, you are entitled to intervene in any custody proceeding that is later commenced.

Ultimately, whether or not you can gain de facto custodian status will depend on the specific facts and circumstances of the case. Overall, third-party custody cases are unique and often times extremely complex. There are no clear-cut answers because third-party custody cases are highly fact sensitive. Such cases require a skilled attorney to navigate and guide you through the murky waters. Ciyou & Dixon, P.C. attorneys practice throughout the State of Indiana and understand the complication associated with third-party custody matters. This blog post is written by Ciyou & Dixon, 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.

1. I.C. 31-19-2-35.5
2. A.J.L. v. D.A.L., 912 N.E.2d 866 (Ind. Ct. App. 2009).
3. I.C. 31-19-2-35.5
4. Paternity of M.S., 146 N.E.3d 951 (Ind. Ct. App. 2020).
5. Id.