Raising Someone Else’s Children
A word that has almost vanished from common conversations is the term “nuclear” family. This conjured up the notion of a mother, father, two children (a boy and a girl), family dog, and the proverbial white fence. Now children are routinely shared between same-sex parents, divorced parents or have a single parent.
However, there are tens of thousands of children being raised by neighbors, other family members, or a trusted friend of parents. Sometimes the children are abandoned, not supported or contacted by the parent or parents again. This creates problems with school enrollment to medical care. The reason for this ultimately stems from the fundamental constitutional right of a parent to raise his or her children. Our society is set up for parents to make decisions about their children.
Nevertheless, the longer the children are in the care of the third party, the more the third party becomes bonded to the children, and the children, to the third party. But this third party has no legal ability to prohibit a parent from showing up and taking the children away without legal action. This blog explores the legal tools available to a third party—legal steps that they may take before such a situation arises or at the time the parent(s) show up.
The first stems from an early recognition of the harm that could occur when a child is literally ripped away from the person the child knows to be his or her “parent”-- a sense of security for mental and physical well-being. The Indiana Supreme Court addressed this in the K.I. case.1 By caselaw, the Court established that such individuals who are so interwoven in the child’s life that to remove them would cause physical or emotional harm could obtain custody or placement over a natural parent.
The Legislature later passed the de facto custody statute. This allows a third party to bring a custody action against natural parents if they have provided for the care and custody of a child under three years old for at least six months and at least a year if they are three years of age or older. This third party custodian has to sue the parents or intervene in an existing case and establish by clear and convincing evidence that they provided such care. If established, the court must make the caregiver a party. The court can award the de facto custodian custody if it is in the child’s best interests. However, if the court does not award custody to the third party, there is no provision in the statute for parenting time with this person the child is bonded to.
A similar tool is a guardianship. This may be opened by filing in probate court and this action, if successful, allows the caretakers to have legal guardianship over the children. Some courts treat this as more or less permanent. However, a biological parent can come and seek to terminate the guardianship. At this time, the court could terminate the guardianship, but the guardians may be de facto custodians by that time and retain “custody.”
Thus, there are many legal tools available to skilled domestic attorneys to assist with protecting children and keeping them with caretakers who have raised the children where the children see the caretaker as their “parent(s)”.
This blog post is written by attorneys at Ciyou & Dixon, P.C. who handle all child-related matters throughout the State. This blog is written to provide general information and is not intended to be legal advice or a solicitation for legal services. It is an advertisement.
- K.I., 903 N.E.2d 453 (Ind.2015).