A recent House Bill to unanimously pass the Indiana House of Representatives addresses issues of guardianship and custody and the inclusion of information from the Indiana Department of Child Services (DCS) and Children in Need of Services (CHINS) in the guardianship and custody proceedings.
House Bill 1041provides that if a person files a petition to establish or modify a guardianship, visitation, or child custody, that person shall submit a verified petition whether the person has been determined to be a perpetrator of abuse or neglect (substantiated by DCS); whether the child has been a victim of substantiated abuse or neglect; whether the child is CHINS, or whether the child has been involved with an informal adjustment1.
This is to help courts and litigants share information in a clearer way, but may have some unintended consequences. It is helpful to have a bit of background in these types of matters. A claim starts with someone alerting DCS of possible child abuse/neglect. DCS then conducts an investigation and either substantiates (confirms) or finds the claim unsubstantiated (does not confirm). The standard of proof is preponderance of the evidence. There is no exact percentage for preponderance of the evidence; but generally, it can be thought of as 51% proof that the claim (or alleged CHINS matter) occurred.
A child is considered CHINS if it is believed the child is not being properly cared for generally2. For example, this includes a child not being properly fed to a parent that is endangering a child’s physical or mental health. A CHINS case can be initiated (filed in court) based on DCS substantiation. As a related matter, an informal adjustment is done instead of a CHINS petition. This allows the parent(s) to comply with terms, services, or otherwise to correct a potential problem or prevent future issues.
The universal standard in family law and domestic cases is to act in the best interests of the child. If a guardianship or a petition to modify custody is filed, the standard to determine where the child will be includes what is in the best interest of the child3.
Adding a verified petition regarding any of the above-mentioned instances may create difficult circumstances for one or both parents and inadvertently disclose matters protected by law from disclosure. For example, a finding of neglect can be substantiated if it is undetermined whether the child received an injury with one parent or the other, so a finding of neglect for lack of proper supervision can be made against both parents.
In this instance, there is no concrete evidence under whose care the child was injured or even if the child was injured by either parent. Therefore, a parent trying to get or modify custody of their child may have to answer to a substantiated neglect finding that may or may not have proper foundation under the proposed bill and nothing to do with that particular parent, creating evidentiary showings in the domestic court where the guardianship or custody proceeding is pending.
Combining findings and services from DCS with guardianship and custody cases may provide a more thorough background, but may also cause more complexities and issues regarding applicability. If you have been involved with DCS in the past, be aware of the new bill, and how it may affect a pending custody or parenting time matter. These cases are inextricably interlinked, but at the same time, have the potential to create additional evidentiary burdens for a parent in a custody case outside of CHINS.
We hope that this blog post has been informative regarding the proposed legislation. Every citizen should be aware of all proposed legislation, even you are not involved in such a case, in order to meaningfully inform your legislator or senator. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.
- Ind. Code §31-34-1-et. Seq.
- See e.g. Ind. Code §31-17-2-8