Who qualifies for third-party custody in Indiana, and can a 3rd party (someone other than the parent) get visitation if they do not prevail in physical custody litigation?

The most recent U.S. Census statistics indicate that a large number of minor children are being raised by third parties, which begs the question of when third party child custody is allowed under Indiana law.

In a 3rd party custody proceeding, at which the court is to determine whether to place a child with a third person (someone other than the natural parent) the burden is on the 3rd party to prove by clear and convincing evidence that the child's best interests are substantially and significantly served by the third party placement. In a large majority of cases, the third party is often a grandparent. Specifically, in 2009, 7.8 million children lived with at least one grandparent, a 64 percent increase since 1991, when 4.7 million children lived with a grandparent; other unrelated third parties are also frequently rearing other parents’ children.

However, grandparents, just by virtue of being grandparents, are not entitled to 3rd party custody of their grandchildren because of the fundamental right of parents to have custody and control of their children. The Indiana Grandparent Visitation Act provides that grandparents may be entitled to some visitation with their grandchildren. However, the Act provides that grandparent visitation should be occasional and infrequent. Grandparent visitation rights are different from third party visitation rights.

Under current Indiana law, which is in state of transition, only parents and step-parents are generally awarded visitation rights if they do not get physical custody. The Indiana Court of Appeals has recently concluded that visitation rights can also be applied to a former domestic partner.

However, if grandparents or any other third party is left with taking care of the children, at some indeterminate point in time, 3rd party custody rights may attach. This means this third-party has legal standing to seek custody, whether or not they have standing to seek visitation. Third party custody under caselaw is generally referred to as the “Hendrickson test” and/or as “de facto custody” under statutory law.

Each requires similar evidentiary showings, and there is a presumption that the child be raised by the natural parent(s). Before placing a child in the custody of a person other than the natural parent, a trial court must be satisfied by clear and convincing evidence that the best interests of the child require such a placement. Further, the natural parent presumption will not be overcome merely because a third party can provide the better things in life for the child (In re the Paternity of I.E., 2013).

Currently, third party visitation rights do not exist under Indiana law in this context, and if the person does not prevail in a custody dispute, there is no legal right to contact. In other words, despite effective third party child custody in the past, if a natural or step-parent seeks custody and prevails, there are no automatic third party visitation rights for these former caretakers, even if they have some significant bonding with the child. Alternatively stated, these third parties must prevail on physical custody in order to maintain contact with the Children.

However, under this current-all-or-none approach, third party custody may be ordered in any third party whose affections have become interwoven that to sever the bond by changing custody would physically or mentally harm the child and/or if the third party is a de facto custodian (which is defined by statute). Third-party custody is less likely to apply if a parent has left the children with a de facto custodian in order for the parent to work or attend school. This may seem the opposite of the above-discussed demographic trends; there is enormous social, political, and legal (executive, legislative, and judicial) pressure on family law, so the law may change in the nearer future.