According the Census Bureau, in 2009, 7.8 million children lived with at least one grandparent, a 64% increase since 1991, when 4.7 million children lived with a grandparent1. While the census only addresses grandparents raising their grandchildren, this is a strong indicator of trends in society wherein more third parties (grandparents, aunts/uncles, friends, etc.) are raising the children of other people. When these situations present themselves, there are many legal issues that need to be addressed.
First, as a general rule, there is a strong presumption both in the United States, and in particular in Indiana, that a child’s best interests are served by being raised by his or her natural parent2. The United States Supreme Court has made the strong policy statement that a “fit” parent has the constitutionally protected right to raise his or her child without interference from the government3. Thus, there are some legal complications involved when a third party takes of the child rearing duties from the natural parent, either because the parent cannot, or because the parent requests or acquiesces to the third party’s care of their child.
Adoption severs the legal ties between a natural parent and a child, including for purposes of seeking child support, seeking custody in the future, and even inheritance issues. Because the legal ties are completely severed and replaced by a new adoptive parent, this legal remedy requires notice, and in most cases, consent by the natural parent.
Guardianship is generally temporary in nature, but can become permanent by the parent’s long acquiescence to the third party’s care of the child, such that the child is so bonded with the third party that harm would result should that bond be severed. However, even if the natural parent later seeks to terminate the guardianship, and the guardian contests it, the court will consider the case as a child custody matter, and apply the standard that it is presumed the child’s best interests are to be with the natural parent. Thus, the guardian contesting termination of guardianship must rebut this presumption by showing that the child’s interests are substantially better served by remaining with the guardian4.
A de facto custodian is a person who has provided the primary care of for the child (both emotional and financial support) for 6 months if the child is under 3 years old, or for a year for a child who is over 3 years old5.
When seeking to preserve your legal rights to a child you are raising that is not your own natural parent it is important to keep detailed records of the funds you spend, the time you spend, and the involvement of the natural parent. Because a third party comes to the court in a slightly lesser legal position, good record keeping can help you make your case and preserve the future safety and welfare of the child you are raising.
We hope that you have found this information to be helpful in understanding your legal rights as a third party raising someone else’s child. This is not intended to be legal advice. If you have questions or concerns about your specific case, CIYOU & DIXON, P.C. can help evaluate your specific case. This blog post was written by Attorney, Lori B. Schmeltzer.