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De Facto Custody Uses and Limitations

“De Facto Custody” Uses and Limitations: Not a Legal Avenue for Occasional Visitation

The dynamics of what constitutes a “family” have been rapidly changing over the past several decades. What used to be considered family with a mother, father, and two children is no longer the norm, in many cases. Often, families now include step-parents, grandparents, half siblings, etc. This changing make-up of the family unit has led to more complex custody and visitation cases.

As advocates at Ciyou & Dixon, P.C., we often see extended family members or sometimes even unrelated parties who have cared for a child, physically and financially, for a lengthy period of time have the child suddenly taken back from them by the biological parents.

This is often traumatic for the caregivers and children, and they wish to gain court-ordered custody of the child they have raised. This blog post addresses legal authority that might apply to establish custody in the de factos or extended time by Indiana Parenting Time Guidelines.

One way to achieve this is to file for de facto custodian status. Indiana Code defines “de facto custodians” as parties who have been the primary caregiver and financial supporter of a child for a prescribed period of time.1 There are limitations to how and when the time can be calculated, and the potential de facto custodians must prove by clear and convincing evidence that they have been the primary caregivers and financial supporters of the child; such may be made by evidence of receipts, photos, and testimony regarding same.

However, within the term “de facto custodian”, lays one major component of the title: custody. One who has been the primary caregiver and financial supporter of a child for the prescribed period of time does not simply request visitation if the biological or other caregivers have taken over. Visitation falls under other statutes, including statutes for post-adoption visitation for biological parents and grandparent visitation. These are separate and can be more limited and do not apply.

For example, in a recent case involving Mother’s former boyfriend whom Mother’s child called “daddy” and whom he helped raise for three (3) years, the Court of Appeals reversed the trial court’s decision that former boyfriend be granted visitation.

Had former boyfriend sought and attained a de facto custodian status, Parenting Time may have been examined and found appropriate, but the granting of visitation was not in line with Indiana law.2 That is a de facto custodian may be awarded custody or more parenting time with the child. Parenting time is far more expansive than visitation.

In another case involving a biological father who consented to the child’s maternal grandparents adopting his child due to medical expenses and Father being of a young age and later seeking visitation, the Court held that the Father should seek visitation under the post-adoption visitation statute. The concurrence discussed the potential de facto legal custodian issue, and how Father could have asserted it, but did not.3

Often, legal language is strict and unforgiving, and having an attorney who is knowledgeable in a specific subject matter is often immensely helpful. Knowing that de facto custodian status is not a visitation issue is an important distinction when looking to regain custody or parenting time with a child you formerly provided physical and financial care for.

If visitation is truly what is desired, there are other, separate statutes that may apply and be a means to attain visitation. De facto custodian status is the way to go to obtain custody and or expended parenting time. Discuss with your attorney the desired outcome and the prior and current relationship with the child to act in both the best interests of the child and you.

Ciyou & Dixon, P.C. advocates practice throughout the State of Indiana. This blog post was written by attorney Bryan L. Ciyou and Jessica Keyes.

  1. Ind. Code § 31-9-2-35.5
  2. K.S. v. B.W. 954 N.E.2d 1050 (Ind.Ct.App.2011)
  3. J.S. et. al. v. J.D. 941 NE2d 1107

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Ciyou & Dixon, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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Based in Indianapolis and founded in 1995, Ciyou & Dixon, P.C. is a niche law firm focused on successfully dealing with the complexities of divorce, high-conflict child custody and family law. Known for their ability to solve extremely complex situations with high quality work and responsiveness, Ciyou & Dixon will guide you every step of the way. The family law attorneys at Ciyou & Dixon, P.C. will help you precisely identify your objectives and the means to reach your desired result. In addition, this practice focus is augmented by the firm's other three core areas, namely appellate advocacy, civil practice, and firearms law. Life is uncertain. Be certain of your counselSM.

Indianapolis Divorce Attorneys, Ciyou & Dixon, P.C. of Indianapolis, Indiana, offers legal services for Indianapolis, Zionsville, Noblesville, Carmel, Avon, Anderson, Danville, Greenwood, Brownsburg, Geist, Fortville, McCordsville, Muncie, Greenfield, Westfield, Fort Wayne, Fishers, Bloomington, Lafayette, Marion County, Hamilton County, Hendricks County, Allen County, Delaware County, Morgan County, Hendricks County, Boone County, Vigo County, Johnson County, Hancock County, and Tippecanoe County, Indiana.