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Who Qualifies for Third-Party Custody in Indiana?

On Behalf of | Nov 5, 2020 | Family Law

In a majority of cases, a grandparent is awarded third-party custody of a child when parents can not take care of the child, or when parents are deemed unfit. However, third-party placement will only be awarded if the court considers it is in the best interest of the child.

What Is Third-Party Custody?

Situations often arise that impact the relationship between parents and children. When parents decide to file for divorce, child custody becomes an important legal issue that must be decided by the court. In most cases, the court will award sole custody to one parent or joint custody that is shared between both parents. However, there are cases where neither parent is capable of taking care of the child due to financial or mental health problems. When this occurs, an outside party, usually a relative or guardian, may seek third-party custody of the child.

De Facto Custodian

Seeking third-party custody in Indiana can be done through a process known as “de facto custodian.” Indiana statutory code defines a “de facto custodian” as a person who has been the primary caregiver and primary financial supporter of a child. To meet court-approved requirements, a person must have provided primary care for the child for at least one year.

If the child is less than three years old, the child must have resided with that person for at least six months. If the child is three years old or older, the child must have resided with that person for at least one year. The one-year period does not have to be 12 consecutive months. In one case, the Indiana Court of Appeals awarded “de facto custodian” to a child’s aunt and uncle because the child lived with them for the majority of the time over a two-year period, even though the time was not 24 consecutive months.

In de facto custodian cases, the Indiana Court of Appeals recently clarified a provision related to child custody proceedings. An exclusionary provision states that the establishment of a de facto custodianship excludes any period of time after a child custody proceeding commences and while it is pending statutory requirement. For example, if a child is living with a relative for six months while parents are in a legal custody dispute, that six-month period may not be used to establish de facto custodian status.

The Indiana de facto custodian statute is meant to clarify a third-party’s standing in certain custody proceedings while focusing on the best interests of the child regarding placement with a third-party. In complex divorce cases, an family law attorney can oversee the legal process of claiming de facto custodian to ensure that court requirements are met. If de facto custodianship is proven, a third-party has a right to intervene in a custody proceeding.

Third-Party Custody Proceedings in Indiana

In a third-party custody proceeding in Indiana, the court will determine whether or not to place a child with a third-party, someone other than the child’s biological parents. In many cases, the third-party is a grandparent, a parent’s sibling, or a close family relative.

According to U.S. Census reports, 7.8 million children lived with a grandparent in 2009. However, grandparents and other relatives are not automatically entitled to third-party custody rights. Indiana courts must determine the best interest of the child through legal proceedings. Following a divorce, parents are entitled to custody of the children unless there is proof that those custody arrangements may be harmful to the children.

The Indiana Grandparent Visitation Act ensures that grandparents may be entitled to some visitation with the grandchildren, even if it is occasional or infrequent visitation. Grandparent visitation rights are different from third-party visitation rights. If grandparents are taking care of the children, they have legal standing to seek third-party custody, even if there is not standing to seek visitation.

Under current Indiana law, third-party custody is closely tied to the court’s decision of what is in the best interest of the child. If legal proceedings show that a third-party arrangement may cause physical or psychological harm to the child, third-party custody will likely be denied. The burden of proof is on the third-party to show that the child’s best interest will be served by placement with that party.

The time required for legal proceedings can vary greatly depending on facts in the case related to parental custody issues and reasons for seeking third-party custody. An attorney who is familiar with divorce and child custody law can ensure that proper paperwork is filed with the court in a timely manner, third-party custody issues are fully addressed according to Indiana laws, and the third-party’s burden of proof is met for a successful outcome.