Third Party Custody - When Somebody Other than a Parent Wants Custody
When someone other than a parent seeks to take custody away from a parent, the non-parent has a hard row to hoe under Indiana law. In disputes between parents and another party Indiana has developed a common law rule that "in a custody dispute between the child's natural parent and a third party, it is presumed that it is in the best interest of the child to remain in the custody of the parent" (In Re Marriage of Simmons (1985), Ind.App., 487 N.E.2d 450, 454). "[T]his presumption serves to protect the parent's right to be free from unwarranted interference by third parties into the parent's fundamental relationship with the child." Ibid.
Because it is presumed that it is in the best interests of the child to be placed in the custody of the parent, Indiana law also imposes a more strenuous burden of proof on a third party who seeks to replace the natural parents as the child's legal custodian. The third party must prove its case by clear and cogent evidence. What must be proved is that the parent is unfit or have acquiesced in or voluntarily relinquished custody to the third party. It is only after showing unfitness, acquiescence, or relinquishment that a court may proceed to question whether the child's best interest will be better served by placing the child in the custody of a third party compared to the natural parent. Then the party seeking custody must prove that the change in custody is in the child’s best interests. See In re Guardianship of L.L., 745 N.E.2d 222 (Ind. Ct. App. 2001), trans. denied.
However, when a parent initiates an action to reobtain custody of a child that has beenin the long-term custody of another, the burdens of proof are not quite the same. The third-party still has the burden of overcoming the presumption that the child should be with its parent. If the third-party does rebut this presumption, then the parent has the burden to show that it is in the child’s best interests to be in the custody of the parent. In Re the Paternity of Z.T.H., __ N.E.2d. ___ (Ind.App. 2005). The Z.T.H. court looked to the following statute for what evidence constitutes the best interests of the child:
IC 31-14-13-2 Factors of custody determination
Sec. 2. The court shall determine custody in accordance with the best interests of the child. In determining the child's best interests, there is not a presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child's parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parents;
(B) the child's siblings; and
(C) any other person who may significantly affect the child's best interest.
(5) The child's adjustment to home, school, and community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) of this chapter.
A similar statute applies for cases arising out of a dissolution of marriage (divorce) case. See IC 31-17-2-8 (West’s A.I.C. 2005).
Most of these cases involve grandparents or step-parents against a parent. So after all this technical talk where do you stand? I am going to make some very general statements in the next few paragraphs and you need to understand that these cases depend on their details. These are general guidelines. Do not do anything without consulting an attorney.
Let us assume that you are a grandparent or a step-parent and there is no agreement that you have custody of the other person’s child, you got a lot of work to get custody. You need to have the following facts in your favor:
1. The parent has left the child with you for an extended period of time or their treatment of their child is such that you can rebut the presumption that they should not have custody.
2. Your relationship with the child is such that it is in the child’s best interests that you have custody.
3. You are such a person that it is in the child’s best interests that you have custody.
4. That you are prepared for a fight.
If you are the custodial parent, and you have treated your children well and/or have not left them for very long periods time, then you should have a good case. Otherwise, you need to talk to an attorney now.
Nothing can be so helpful as a grandparent willing to help a parent who is having trouble raising their children. Agreements can be reached between the parties to help solve some of the problems which if the matter went to court would result in a large attorney fees and a rancorous relationship between the family members. Before letting a child go to live with a third-party or before taking in a child of another, go to an attorney and get a written agreement. You will save much in the way of financial and emotional costs.
Because it is presumed that it is in the best interests of the child to be placed in the custody of the parent, Indiana law also imposes a more strenuous burden of proof on a third party who seeks to replace the natural parents as the child's legal custodian. The third party must prove its case by clear and cogent evidence. What must be proved is that the parent is unfit or have acquiesced in or voluntarily relinquished custody to the third party. It is only after showing unfitness, acquiescence, or relinquishment that a court may proceed to question whether the child's best interest will be better served by placing the child in the custody of a third party compared to the natural parent. Then the party seeking custody must prove that the change in custody is in the child’s best interests. See In re Guardianship of L.L., 745 N.E.2d 222 (Ind. Ct. App. 2001), trans. denied.
However, when a parent initiates an action to reobtain custody of a child that has beenin the long-term custody of another, the burdens of proof are not quite the same. The third-party still has the burden of overcoming the presumption that the child should be with its parent. If the third-party does rebut this presumption, then the parent has the burden to show that it is in the child’s best interests to be in the custody of the parent. In Re the Paternity of Z.T.H., __ N.E.2d. ___ (Ind.App. 2005). The Z.T.H. court looked to the following statute for what evidence constitutes the best interests of the child:
IC 31-14-13-2 Factors of custody determination
Sec. 2. The court shall determine custody in accordance with the best interests of the child. In determining the child's best interests, there is not a presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child's parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parents;
(B) the child's siblings; and
(C) any other person who may significantly affect the child's best interest.
(5) The child's adjustment to home, school, and community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) of this chapter.
A similar statute applies for cases arising out of a dissolution of marriage (divorce) case. See IC 31-17-2-8 (West’s A.I.C. 2005).
Most of these cases involve grandparents or step-parents against a parent. So after all this technical talk where do you stand? I am going to make some very general statements in the next few paragraphs and you need to understand that these cases depend on their details. These are general guidelines. Do not do anything without consulting an attorney.
Let us assume that you are a grandparent or a step-parent and there is no agreement that you have custody of the other person’s child, you got a lot of work to get custody. You need to have the following facts in your favor:
1. The parent has left the child with you for an extended period of time or their treatment of their child is such that you can rebut the presumption that they should not have custody.
2. Your relationship with the child is such that it is in the child’s best interests that you have custody.
3. You are such a person that it is in the child’s best interests that you have custody.
4. That you are prepared for a fight.
If you are the custodial parent, and you have treated your children well and/or have not left them for very long periods time, then you should have a good case. Otherwise, you need to talk to an attorney now.
Nothing can be so helpful as a grandparent willing to help a parent who is having trouble raising their children. Agreements can be reached between the parties to help solve some of the problems which if the matter went to court would result in a large attorney fees and a rancorous relationship between the family members. Before letting a child go to live with a third-party or before taking in a child of another, go to an attorney and get a written agreement. You will save much in the way of financial and emotional costs.