Without question, more third parties–from neighbors to grandparents–are caring for or raising others’ children. What are their rights to contact, visitation, parenting time, and custody of the children they are caring for and/or raising?
This is a complex factual and legal question since the United States Constitution provides biological (and adoptive) parents with the fundamental (i.e., high level) right to raise their children; this legal right trumps the fact a third party may do a markedly better job.
This blog post explores the current exceptions to this (fundamental) constitutional right of parents and explores third-party rights or exceptions recognized under Indiana law–given the competing interests of a child having his or her best interests met.
First, although limited, grandparents may have the right to visitation with their grandchildren while they are below the age of minority. According to a recent key decision by the Indiana Court of Appeals, this, unfortunately, due to legislative prerogative does not extend to relatives.1 This is narrowly limited to infrequent and/or occasional contact. This position in Indiana law comes as a result of the United States Supreme Court case decision in Troxel. Following the Troxel decision, the Legislature adopted the Grandparent Visitation Act that may provide grandparents with some legal right to see their grandchildren.
Second, pursuant to the Indiana Supreme Court’s K.I. case, a third-party may obtain custody of children of their adult children if their care has been so significant that to separate them would cause significant determent the child’s(ren’s) well-being. The legal tool to effectuate this may be custody to guardianship.
Third, there are children that are totally raised by third parties. Where this time exceeds six months for children a year or older, such a third party may seek custody and obtain child support from the parents. This is by statute in Indiana. However, the statute speaks in terms of the third party having physical custody and appears to leave a gap in law whereby a de facto custodian (a determination of law based on the passage of time and care), either obtains custody or has no contact with the children they have raised, since there is no provision for parenting time at the present and appellate courts have rejected arguments for such.
Fourth, and perhaps the oldest tool existing for third party custody is a guardianship. Here because there is no parent willing or able to care for the children, a child may be placed in a guardianship to allow a third party to make decisions for the children and act in all ways as their parents. However, a guardianship may be terminated when a parent presents himself in court and demands it termination because he or she is ready, willing and able to parent. In these cases, a de facto custody determination or that in K.I. may be found and allow the guardian to obtain custody.
Thus, within the bounds of the United States’ constitutional constraints, Indiana lawyers, courts and judges stand ready, willing and able to assist third-parties with meeting the best interests of children. These cases are factually and legally complex and are often guided insofar as the best legal course under the law and facts by skilled legal counsel. Ciyou & Dixon, P.C. advocates handle third-party custody cases in trial court and appellate courts throughout the State. This blog is not intended as legal advice or a solicitation for legal services. It is an advertisement.
