With today’s ever-expanding accepted concept of what makes up a “family”, which is far beyond the nuclear family definition, such as step parents and step siblings, aunts, uncles or grandparents caring for his or her sister or brother, or child’s children, there is much confusion as to who has the legal rights to the care and custody of child if it comes to a dispute.
Simply, just because you are raising a child, if that child is not your own child, biologically or through an official court adoption and you have not engaged in any other legal action to establish legal custody or guardianship, you do not have any legal rights for the most part.
Imagine the common scenario that a grandmother/father takes in her grandchild, financially supports him or her for five years, provides a home and all the comfort and care, while the parents are absent from the picture (or only visit on occasion). Unless the grandmother has legal guardianship or asks the court for custody, either of the child’s biological parents can uproot the child and take him or her out of the grandmother’s care, and be completely in the legal right to do so.
And they can do so instantly and receive police assistance if necessary. Thus, the time to act is before this happens in the ideal situation.
In Indiana there are statues that relate to what is called “de facto custodians” which means a person, who by actions over a period of time, are in fact, if not in law, a child’s custodian. To qualify as a de facto custodian means that the caregiver (in the scenario above, the grandmother) is the primary caregiver for, and financial support of, a child who has resided with the person for at least: 6 months if the child is less than 3 years of age, or 1 year if the child is at least 3 years of age. However, these time requirements for care must be met before a person files for custody. Also, this statue is inapplicable to a caregiver providing care to a child through a state foster parent program, or because the children was removed from the legal custodians due to a Child In Need of Services action.1
This scenario is not to be confused with grandparent visitation rights (or legal guardianship). A de facto custodian is in, fact, the person(s) who provides the child’s home and is the primary caregiver, and whom the child looks to for care, comfort, emotional and financial support. The de facto custodian may have a primary bond or attachment with the child.
Sometimes, the agreement between the third party caregiver (i.e. grandma) is not just an unspoken agreement, but instead the parents and third party agree to a legal “guardianship.” There may be many reasons for this, such as that the guardian can provide health insurance, or sign the child up for school, etc.2 However, be cautioned, legal guardianship is not the same as being awarded custody.
A guardianship may be terminated upon the child turning 18, the child’s death, or upon the request of the natural parents and if the court determines the guardianship is no longer necessary for any other reason. In practice, guardianships are often terminated and the child placed in the care of the parent, regardless of the considerations enumerated with respect to the laws governing “de facto custodians.”
As a third party caregiver of a minor child, is important to protect that child’s rights early on and not wait until the biological parent reappears, sometimes after several years of no contact, and requests their child returned. If the third party caregiver (i.e. grandmother) feels that it is necessary the child permanently reside with and be cared for, until the age of 18 (adulthood), it is important to legally establish custody and all the rights and protections included therein.
In other words, an unspoken agreement or written agreement or guardianship may not be sufficient to allow a child to remain in this care in the absence of a de facto custodian determination and custody order.
We hope that this blog post has been informative about continuances and withdrawals. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.