There are several studies and statistical data compilations indicating a growing number of children in the United States are being raised by third parties. These third parties range from grandparents to relatives or sometimes just a friend of a custodial parent. This person may become a “de facto custodian” and seek physical custody. To do so, he or she must establish evidence they have had the infant or toddler and been their primary caregiver and means of financial support for at least six (6) months in cases where the child is less than three years of age.1 This blog addresses how a third party raising an infant or toddler not their own may become a de facto custodian and other key legal considerations relating to de facto custody.
Assuming you believe you can gather the evidence to establish yourself as a de facto custodian, the question is how to litigate the matter. What court do you file your request in to be adjudicated a de facto custodian and obtain physical custody? Ordinarily, if there has been a divorce or paternity case pending or decided from the past, the de facto custodian would move to intervene in that case to have the de facto status determined and his or her request for custody heard. In cases where the parents were never married or paternity has not been established, the de facto custodian has to bring a miscellaneous action suing the parents for custody. If upon receipt of the evidence, the court determines that the third is a de facto custodian, the court then makes the de facto custodian a party to the proceedings and has a custody hearing. That said, a parent has a fundamental right to raise his or her children over any other person.2 For this reason, the third party must prove they are a de facto custodian by clear and convincing evidence.3
This raises the obvious question of how a third party proves by clear and convincing evidence he or she is a de facto custodian. Because infants and toddlers may not be verbal and/or able to be conversational and process and convey complex thoughts, a person seeking to be determined to be a de facto custodian is unable to have a guardian ad litem interview the child or request the child to be interviewed in chambers by the judge to relay who has been their primary caregiver, namely the de facto custodian. For this reason, a bonding assessment may be required. A bonding assessment is an evaluation conducted by a child psychologist to determine the nature and quality of the bond between and infant/toddler and the third party. This expert would then be called at trial to testify about the close bond the child has to the third party and if it is akin to a bond a child would have with his/her parents, which is at least some evidence to support the duration of care by the third party (an infant or toddler who had not spent much time with the third party would not have a parent-child like bond observed by the child psychologist). In addition, a third party may have to provide witnesses, pictures, receipts, medical records and related types of evidence to establish they were the child’s primary caregiver for the requisite time period.
So after a court finds a party to be a de facto custodian, how then does the court determine who should have custody in the child’s best interests? When a case proceeds to this point, the court considers the best interests factors set forth in the custody statues contained in the Divorce and Paternity Act for making a custody determination in a child’s best interest between biological parents. Under these statutes, the court considers all relevant factors, including the following: (1) the age and sex of the child. (2) the wishes of the child's parents. (3) the wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age. (4) the interaction and interrelationship of the child with: (A) the child's parents; (B) the child's siblings; and (C) any other person who may significantly affect the child's best interest. (5) The child's adjustment to home, school, and community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent.4
In addition in a separate statute covering de facto custodians specifically, the court also considers the following factors in determining custody in de facto cases: (1) The wishes of the child's de facto custodian.(2) The extent to which the child has been cared for, nurtured, and supported by the de facto custodian. (3) The intent of the child's parent in placing the child with the de facto custodian. (4) The circumstances under which the child was allowed to remain in the custody of the de facto custodian, including whether the child was placed with the de facto custodian to allow the parent now seeking custody to: (A) seek employment; (B) work; or (C) attend school.5
This is the case and evidence the court receives in a properly prepared and tried de facto custodian case. The court, considering all of the evidence, and some defenses for the parents against losing a child to a de facto custodian, such as to attend school to better him or herself, then awards custody of the child to the child's de facto custodian if the court determines that it is in the best interests of the child. If the court awards custody of the child to the child's de facto custodian, the de facto custodian is considered to have legal custody of the child under Indiana law. However, the child’s parents may well be awarded parenting time and have to pay the de facto custodian weekly child support.
Ultimately, with skilled legal counsel, and careful development of the evidence, a third party may be awarded sole physical and legal custody over biological parents. This statutory scheme, augment by caselaw, balances a parent’s fundamental right to raise his or her child against a child’s best interests. Is this your case? If so, you should seek counsel familiar with and who has tried de facto custody cases. This blog is written by attorneys at Ciyou & Dixon, P.C. to provide general information about how a third party raising an infant or toddler may obtain custody as a de facto custodian. It is not intended as legal advice or a solicitation for services. It is an advertisement.
- Indiana Code 31-9-2-35.5 (definition of a de facto custodian).
- Troxel v. Granville, 530 U.S. 57 (2000).
- This is higher burden of proof than preponderance of the evidence but not as high as a criminal burden of proof where the state has to prove each element of the crime beyond a reasonable doubt.
- Indiana Code section 31-14-3-2 (there are mirror statutes in the paternity and divorce codes).
- Indiana Code section 31-14-13-2.5 (there are mirror statutes in the paternity and divorce codes).