De Facto & Grandparents Rights
"How do de facto custody differ from grandparents rights in the state of Indiana? Does it allow persons other than parents to obtain visitation or custody?"
Ciyou & Dixon, P.C. attorneys tread the rough waters that may allow grandparents legal rights to visitation with their grandchildren and third parties to seek custody of children not their own. The area is legally complex because of a 2000 decision handed down by the Supreme Court of the United States (SCOTUS) in Troxel v. Granville.
The importance of the Troxel case in Indiana and to Ciyou & Dixon, P.C. grandparents rights clients is sometimes significant. In Troxel, the SCOTUS reiterated the longstanding principle that the Due Process Clause of the Fourteenth Amendment to the United States Constitution protects the fundamental right of parents to make decisions concerning the care, custody and control of their children.
What this means is that without significant evidence to the contrary, a natural parent’s right to parent his or her child to the exclusion of grandparents or third-party de facto custodians trumps other arguments. At the same time, the Troxel decision left open a clear window of legal opportunity for non-parents to have visitation and/or custody of children.
It did so by explicitly noting the changing composition of the American family and that grandparents and third parties are providing and undertaking the duties of parents. Therefore, as a result of such grandparent or third-party care, children may become primarily bonded with the grandparent or third party. The most-current census data makes this shift even clearer. Parents are providing homes for their adult children and helping them raise their children (grandchildren).
How this plays out in Indiana is that a grandparents may seek and be awarded visitation under the Grandparent Visitation Act (GVA). The trial court in which the action is filed has the discretion to make such a provision. To comport with the limits set out in Troxel, however, the GVA only allows a trial court to order occasional, temporary grandparent visitation such that it does not infringe on the parent’s fundamental right to raise the child.
Nevertheless, grandparents or third parties who are not grandparents may seek custody and parenting time under an entirely different statute. This is the de facto custody provision. A person who is a de facto custodian may intervene or bring suit for custody and, with the right evidentiary showing, overcome the natural parent’s presumption to custody.
In this bewildering factual and legal mix, Ciyou & Dixon, P.C. advocates thrive. With our clients, we chart a course to maximize what amounts to a custody battle with the parents. The first step is to determine whether you may meet the criteria to be classified as a de facto custodian. In essence, this requires the child to be bonded with you and the equivalent of a year’s provision of care.
Where this is the case, we initiate or intervene in legal proceedings against the natural parent. To overcome the natural-parent presumption, Ciyou & Dixon, P.C. divorce attorneys help our clients develop sometimes-long-forgotten details and circumstances. Successful advocacy with this legal objective is mindful of the evidentiary showing our clients have to make.
For instance, and precisely, one of the key factors a trial court considers in determining whether a de facto party meets the burden is the extent to which he or she has cared for, nurtured and supported the child. A simply evidentiary statement to this effect is insufficient.
With proper legal work, the real details can be distilled. We find that many de facto custodians are so busy providing care, that they assume it is apparent to everyone else and to the court. This is not the case, and Ciyou & Dixon, P.C. divorce attorneys know so. This is why we are effective advocates.
An equally challenging task is determining and developing the evidence about why the child was placed with you and allowed to remain in your care and custody. Most events in life are not marked by black and white lines. They are subtle. For instance, a parent may well leave his or her child with a grandparent or friend with the express indication that he or she will return in X number of days.
However, that time may come, and the parent picks up the child only to return him or her a short time later. This may be a pattern that operates for a while, with less and less contact from the natural parent. Sadly, we observe this pattern frequently when a parent is struggling with addiction. Our duty is to help you cull these out and choreograph a clear evidentiary showing at the trial on de facto custody.
Overcoming the natural parent’s right is the task at hand where grandparent rights or de facto custody is at issue. It has constitutional dimensions, complex legal standards and evidentiary showings, and is often wrought with overwhelming emotion. If this is your case, Ciyou & Dixon, P.C. can help.