Few topics pull at the heart strings of adult children, grandparents, friends, relatives and other third parties more than providing for and protecting a child they have bonded with. Courts, lawyers, psychologistsi and guardiansii (daily) struggle with how to best resolve disputes between them over physical custody in paternityiii and divorceiv cases, follow constitutional imperatives and meet the best interests standard.
The law is fairly clear. A natural parent’s right is superior to a third party, including a grandparent.v In fact, the United States Supreme Court has so ruled.vi Even a grandparent is entitled to only occasional visitation with his or her adult child’s children. In some cases, a grandparent, relative or third party may overcome a parent’s natural right to custody if they establish they are defacto custodians.
As domestic advocates, we sometimes have a strong case for de facto status as it is defined by statute,vii but the child is an infant or toddler. The problem with these cases is these children cannot speak for themselves, either through testimony, a guardian ad litem, or psychological evaluation (generally).
This brings up the question in a he-said, she-said between a parent or parents and third parties (de factos), how is it possible to establish the time the putative defacto custodian has spent with this child?
These (de facto) cases are difficult as it is. However, when there is no professional or other tool to which a child may be queried, the matter is evidentiary matter is compounded exponentially. While there is no clear and decisive course for a lawyer representing a de facto, there are tools that may be considered to inferentially speak for the child to answer: “Who has cared for you?”
The first and perhaps the most powerful, if conducted by the right expert, typically a clinical child psychologist with a focus on children and/or custody issues, is a bonding assessment. A bonding assessment in simple terms is a clinical psychologist observing the infant or toddler in a very precise way as he or she interacts with the defacto custodian(s).
In a bonding assessment, the psychologist looks at non-verbal ques that are difficult, if not impossible, for a lay person to key into–those between a de facto and infant or toddler that would not occur but for true bonding and attachment.
Precisely, how does the child interact with the de facto that is different from others? Here the psychologist looks to assess if the relationship is like that of a mother or father where the child looks to the de facto for food, comfort, safety. The subtle, nonverbal cues that come from such are powerful and unique to such bonds.
In conjunction with (or in lieu of) this analysis (a bonding assessment), a number of pieces of evidence may inferentially demonstrate the de facto has raised the child and the child is bonded with and/or attached to the de facto, including the following:
- Medical/Dental Records: Who took the child to these appointments? These will have to have a statement of the record keeper and or the provider at the hearing.
- Neighbors: Neighbors, both those living next to the de facto, and/or removed parents, may be powerful sources of information-- who they have observed with the child(ren) on a daily basis.
- Receipts: Again, an inferential source, but numerous receipts that many grandparents seem to keep--for items ranging from formula to diapers--and the like may be a source of “evidence”, although these, and the other types of evidence noted in this blog, face unique or substantial evidentiary challenges, such as hearsay and authentication.
- Photos: There is an old adage that a “picture is worth a thousand words.” This is true with de facto custodians in the case of infants and toddlers. If the holidays, birthdays, and other early-life milestones are punctuated with defacto custodians in the pictures, and none of the parents, they too may be significant evidence.
- Rooms and Living Arrangements: A photo or otherwise demonstrating a child’s room in the de factos home, and otherwise, not found in a natural parent’s home, may also be evidence.
In addition, in the right type of defacto case, useful, if not determinative, evidence may be obtained by private investigation. Private investigators, particularly in the micro-electronic and database age have tools and resources available to them that lawyers and ordinary citizens simply do not. This tool may be an important additional consideration in establishing de facto custodian status with infants and toddlers.
Finally, a number of cases involve recorded telephone calls. There are a number of state and federal civil and criminal laws for violating wiretap laws. If useful information is or maybe available in this format, this is a topic to discuss with your counsel. If lawful, and covering the right call, this may be powerful information.
De facto custody cases are always difficult because a litigant and lawyer must craft a careful legal theme, and a tight one, to establish the third party meets the legal standard. With infants and toddlers, the legal burden is that much more difficult to establish because this (these) children cannot speak up and say who has cared for them.
As such, it is important, if you are a putative de facto seeking custody or parenting time, to be educated about the legal topic, partner with an attorney with a focus in this legal area, and work up the case for hearing. If this blog post has helped you understand the unique difficulties with infants and toddlers and de facto cases, but also focus on central evidentiary sources to consider with de factos and young children–infants and toddlers–this blog post has met its objective.
Ciyou & Dixon, P.C. advocates practice throughout Indiana. This blog post was written by attorney Bryan L. Ciyou.