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Third Party Custody Law In Indiana Kids’ Voice of Indiana Katherine Meger Kelsey, J.D. Derelle Watson-Duvall, J.D.

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Third Party Custody LawIn Indiana

Kids’ Voice of Indiana

Katherine Meger Kelsey, J.D.

Derelle Watson-Duvall, J.D.

Third Party Custody or Guardianship?• Probate court has exclusive original jurisdiction over non-CHINS guardianships,

and NOT over children in paternity or dissolution cases. • Both of child’s parents are deceased• There was a dissolution of marriage, but now one parent is deceased• The child's parents are still married to each other• The child was born out of wedlock and paternity has not been established in a court• The juvenile court does not currently have jurisdiction over the child due to a CHINS or

delinquency case

• If a paternity court or dissolution court assumes jurisdiction over the child, it retains jurisdiction over custody matters.• There are some exceptions: Dissolution court loses jurisdiction after a parent’s death; but

see in In Re Custody of G.J., 796 N.E.2d 756 (Ind. Ct. App. 2003).

• If paternity was established through a paternity affidavit: Guardianship.

Cases Regarding Jurisdiction

• In Re Paternity of B.J.N., 19 N.E.3d 765 (Ind. Ct. App. 2014)

• In Re B.C., 9 N.E.3d 745 (Ind. Ct. App. 2014)

• In Re Adoption of L.T., 9 N.E.3d 172 (Ind. Ct. App. 2014)

• In Re Guardianship of S.M., 918 N.E.2d 746 (Ind. Ct. App. 2009)

• In Re Custody of G.J., 796 N.E.2d 756 (Ind. Ct. App. 2003)

• Christian v. Durm, 866 N.E.2d 826 (Ind. Ct. App. 2007)

• Nunn v. Nunn, 791 N.E.2d 779, 785 (Ind. Ct. App. 2003)

Statutes Relevant to Third Party Custody • IC 29-3-3-3: parents have the right to custody of their child, except as otherwise

determined in a dissolution of marriage proceeding, guardianship proceeding, or other proceeding authorized by law.

• IC 31-17-2-3(2): a custody proceeding can be initiated by a person other than a parent. • Custodians “may determine the child’s upbringing, including the child’s education, health care,

and religious training.” IC 31-17-2-17

• IC 31-14-10-1: upon finding that a man is the child’s biological father, the court shall conduct a hearing on the issues of support, custody and visitation. • No language in statute precludes a third party from seeking custody.

• IC 31-17-2-25: if a custodial parent or guardian becomes unable to care for a child, a third party who is seeking custody may request an initial hearing by alleging the facts warranting emergency placement with the third party other than the noncustodial parent, pending a final determination of custody.

Statutes Relevant to Third Party Custody • Persons seeking third party custody in dissolution or paternity proceedings should

petition for intervention to obtain party status. Ind. Trial Rule 24.• See also In Re Paternity of E.M., 654 N.E.2d 890 (Ind. Ct. App. 1995) for a discussion of Indiana’s

three part test for intervention as a matter of right.

• IC 31-17-2-8 and IC 31-14-13-2: the court must consider evidence that a child has been cared for by a de facto custodian as one of the custody determination factors. • A person who has been the primary caregiver and the financial support of a child for six months if

the child is under three years of age, and for one year if the child is at least three years of age.

• IC 31-17-2-8.5 and IC 31-14-13-2.5: if the court determines by clear and convincing evidence that the child has been cared for by a de facto custodian, the court shall make the de facto custodian a party to the proceeding.

• Indiana law imposes no requirement that a person must be a de facto custodian before a petition to be appointed a third party custodian of a child can be filed.

Statutes Relevant to Third Party Custody • If there is an open CHINS or delinquency case, the dissolution or paternity court

has only concurrent original jurisdiction with the juvenile court for the purposes of modifying custody.• If dissolution or paternity court enters an order while the child is under juvenile

jurisdiction, the order is effective only when the juvenile court approves it or terminates its own proceeding.

• IC 31-30-1-12 and 13 also make provisions for: (1) the dissolution or paternity court to assume or reassume jurisdiction after the juvenile court terminates its jurisdiction; and (2) the juvenile court’s orders to survive the termination of its jurisdiction until the paternity or dissolution court assumes or reassumes jurisdiction.

Statutes Relevant to Third Party Custody

• If third parties are seeking custody of a child, and there is a pending CHINS case:• In Re Custody of M.B., ___N.E.3d ___ (Ind. Ct. App. 2015) (issued on July 29, 2015)

(regarding third parties seeking to be a placement for a child when there is a pending CHINS case).

• If juvenile court has jurisdiction, parties seeking third party custody of the child should do so in the juvenile court proceeding.

• Contact the child’s Department of Child Services (DCS) case manager and the child’s court appointed special advocate/guardian ad litem to express interest, request criminal history checks, a home study, and foster parent training.

Case Law Standards for Third Party Custody• Standard of Review:

• Placing a child with a third party is within the sound discretion of a trial court, and must be given deference; but a generalized finding that placement with a third party is in the child’s best interests is not sufficient. Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002)

• Hendrickson v. Binkley, 316 N.E.2d 376, 380 (Ind. Ct. App. 1974)• Presumption that child’s best interests are served by placement with natural parent;• To rebut presumption, third party must show (a) unfitness, (b) long acquiescence, or (c) voluntary

relinquishment such that the affections of the child and third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child;

• It must be in the best interests of the child to be placed with third party.

• In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002)• Clear and convincing evidence that child’s best interests require placement with a third party;• Placement with a third party must give a substantial and significant advantage to the child;• Parental presumption is not overcome by third party providing “the better things in life”;• Court is not limited to Hendrickson criteria.

Unfitness Case Law• In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002) (Evidence of physical abuse of

Mother and Maternal Aunt by Father, excessive drinking, arrests for OWI and public intoxication, instability and failure to support the children)

• Fry v. Fry, 8 N.E.3d 209 (Ind. Ct. App. 2014) (Evidence of Mother’s diagnosis of Huntington’s disease, which had progressively diminished her ability to care for the children, Mother’s abnormal cognitive function and inability to parent children, and the lack of a cure)

• Parks v. Grube, 934 N.E.2d 111 (Ind. Ct. App. 2010) (Evidence of Mother’s two OWIconvictions, various incidents of excessive drinking, Mother’s verbal cruelty towards the children, Mother’s tendency to drink and bring home strangers while the children were present)

• A.J.L. v. D.A.L., 912 N.E.2d 866 (Ind. Ct. App. 2009) (Evidence that Mother had no stable housing, was unable to financially support the children, had no driver’s license)

Unfitness Case Law, Continued• Christian v. Durm, 866 N.E.2d 826 (Ind. Ct. App. 2007) (Evidence of deplorable

living conditions in parents’ home; child was underweight, smelled badly, and had a bad diaper rash; parents did not have full time employment or car; parents were habitually late in paying rent and were being evicted again; Mother was taking court-ordered anger management classes; Mother failed to control her son’s aggression towards the child)

• Blasius v. Wilhof, 863 N.E.2d 1223 (Ind. Ct. App. 2007) (Evidence of Father’s drug use, criminal history, lack of financial stability, and maintenance of a residence where cocaine, marijuana, and stolen property were also present)

Long Acquiescence and Voluntary Relinquishment Case Law

• In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002) (Evidence of Father’s failure to support the children, estranged relationship between children and Father, lack of significant interaction between children and Father for seven years before guardianship petition)

• Truelove v. Truelove, 855 N.E.2d 311 (Ind. Ct. App. 2006) (Evidence of children’s long term living situation with Grandparents, parents’ lack of emotional or financial support to children, lack of involvement with the children’s lives)

• Allen v. Proksch, 832 N.E.2d 1080 (Ind. Ct. App. 2005) (Evidence of Father’s sporadic contact with child, refusal to exercise parenting time, abandonment of any personal contact with child for two years)

Long Acquiescence and Voluntary Relinquishment Case Law

• Fry v. Fry, 8 N.E.3d 209 (Ind. Ct. App. 2014) (Evidence that Mother had long encouraged her husband to act in the capacity of a father to Mother’s Daughter, Mother and Husband agreed at time of divorce that Husband would receive parenting time, and Mother acquiesced in the custody order)

• A.J.L. v. D.A.L., 912 N.E.2d 866 (Ind. Ct. App. 2009) (Evidence that Mother voluntarily relinquished the children to Aunt and Uncle 50% to 70% of the time)

• Nunn v. Nunn, 791 N.E.2d 779 (Ind. Ct. App. 2003) (Evidence that Husband had acted as child’s father her entire life; strong bond between Husband and child; Husband was instrumental in daily care for child)

Best Interests Case Law• In Re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002) (Evidence of

Stepfather’s role as only “psychological father” children had known, children’s connection to community and school, proximity of extended family, children’s wishes, Stepfather’s role as primary financial and emotional support for children)

• A.J.L. v. D.A.L., 912 N.E.2d 866 (Ind. Ct. App. 2009) (Evidence that Aunt and Uncle provided for emotional/financial support of children without help from Mother; children were strongly bonded to them; children’s behavior was significantly better with them; children were happier)

• Christian v. Durm, 866 N.E.2d 826 (Ind. Ct. App. 2007) (Evidence of child thriving, gaining weight, developing appropriate motor skills in third party’s custody)

Best Interests Case Law, Continued• Blasius v. Wilhof, 863 N.E.2d 1223 (Ind. Ct. App. 2007) (Evidence that child

lived with third parties her whole life, knew them as her parents, and that she was flourishing and appropriately cared for by third parties)

• Allen v. Proksch, 832 N.E.2d 1080 (Ind. Ct. App. 2005) (Evidence that Grandmother was able to provide for child’s special needs; stability given to child by Grandmother; Grandmother’s ability to maintain all medical appointments; Grandmother’s involvement in child's school and other activities)

Cases of Insufficient Evidence

• In Re Paternity of L.J.S., 923 N.E.2d 458 (Ind. Ct. App. 2010) (findings said nothing about Father’s fitness, and findings did not suggest that Father had abandoned the child, or acquiesced to third party custody; findings regarding Father were limited to Father’s temporary lack of child support, employment changes, and smoking habit)

• In Re Paternity of T.P., 920 N.E.2d 726 (Ind. Ct. App. 2010) (trial court was correct in denying third parties’ request for custody; no evidence of acquiescence or abandonment; evidence of unfitness was tenuous and in the past; a strong bond between child and third parties alone was insufficient)

Court Order Appointing Third Party Custodian

• Submitting findings of fact, conclusions of law, and proposed orders with specific reasons why the parental presumption was overcome.

• Order should also address best interests being substantially and significantly served.

• Generalized findings are not sufficient. See In Re Custody of J.V., 913 N.E.2d 207 (Ind. Ct. App. 2009).

Modification of Custody Back to Parent

• In deciding whether to modify a third party custodianship, detailed findings must be made.

• If contested, a hearing must be held. • In Re Adoption of L.T., 9 N.E.3d 172 (Ind. Ct. App. 2014) (trial court erred in dismissing the

guardianship without hearing evidence on the child’s best interests and on changed circumstances that would warrant a modification of custody)

• If a parent initiates an action to re-obtain custody of a child in a third party custodianship:• The burden of proof is always on the third party; • A parent must show that modification is in the child’s best interests and that there is a substantial

change in one or more of the factors the court must consider in modifying custody; • The parent retains the strong presumption that the child’s best interests are served by placement

with the natural parent; • Once minimal burden of parent showing a substantial change in circumstances is met, the third

party must again rebut the parental presumption.• In Re I.E., 997 N.E.2d 358 (Ind. Ct. App. 2013) and K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453 (Ind. 2009)

Parenting Time in Third Party Custody• Scope of Application of the Parenting Time Guidelines: Guidelines are applicable

to all custody situations.• “not applicable to situations involving family violence, substance abuse, risk of flight with

a child, or any other circumstances the court reasonably believes endanger the child’s physical health or safety, or significantly impair the child’s emotional development.”

• Generally, a noncustodial parent is entitled to reasonable parenting time rights.IC 31-14-14-1; IC 31-17-4-1. • Unless the court finds, after a hearing, that parenting time by the noncustodial parent

might endanger the child’s physical health or significantly impair the child’s emotional development.

• Supervised parenting time after conviction of crime involving domestic or family violence: IC 31-17-2-8.3 and IC 31-14-14-5

• The paternity statute contains rebuttable presumptions about parenting time if the noncustodial parent has been convicted of child molesting or child exploitation.

Parenting Time in Third Party Custody• If a court awards custody to a third party:

• Provisions need to be made for parenting time for both parents;

• Parenting time may be affected by reasons for the third party custodianship;

• Best to obtain a detailed parenting time plan.

• Case law on restricting parenting time:• Duncan v. Duncan, 843 N.E.2d 966, 972 (Ind. Ct. App. 2006) (Father had molested their

older sister for ten years, threatened her with a gun, and pressured oldest son to discontinue therapy against his best interests)

• Appolon v. Faught, 796 N.E.2d 297, 300 (Ind. Ct. App. 2003) (Evidence of domestic violence, threats to take children, and admitted child molestation)

Practice Tips

• Interviewing relatives and others, and obtaining affidavits.

• Obtaining criminal history information and police reports.

• Considering use of professional evaluator; but see In Re Guardianship of L.L.¸ 745 N.E.2d 222, 232 (Ind. Ct. App. 2001).

• Asking for appointment of Guardian ad Litem.

• Obtaining copies of DCS and CHINS records.

• Obtaining copies of child support payments, and medical records.

• Using regular discovery tools, such as requests for production of documents, interrogatories, and requests for admission.

• Maintaining contact logs regarding contact with the child and the other parties.

Any questions?

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