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What is a De Facto Custodian in Indiana?

For the purposes of child custody, a de facto custodian in Indiana is someone who “has been the primary caregiver for, and the financial support of, a child who has resided with the person,” for a certain period of time, depending on the age of the child. This type of custodianship often arises in legal matters relating to temporary placement and third party custody in Indiana, when a person other than the child’s biological parent(s) assumes parental responsibilities over the child.

Whether you’re a parent, sibling, close relative or friend of the biological parent(s), becoming the de facto custodian of their child is a big step; and one that comes with a tremendous amount of both personal and legal responsibility. This post will break down what it means to be a de facto custodian in Indiana, both in matters of temporary placement and third- party custody, and address the rights granted to de facto custodians in custody proceedings.

If you have questions about becoming a de facto custodian in Indiana or are concerned that a de facto custodian may be made a party to a custody proceeding that you’re involved in, do not hesitate to contact the Indianapolis custody lawyers at Keffer Hirschauer LLP. Each of our family law attorneys are hands-on, results-oriented litigators who know just how emotional and challenging this process can be and strive to arm our clients with knowledge and unwavering legal support. To speak with an Indianapolis family law attorney today call 317-751-7186 or complete our online contact form to schedule a free consultation.

Keffer Hirschauer LLP: Indiana Family Law Attorneys

The Role of De Facto Custodians in Indiana

As defined in Indiana Code 31-9-2-35.5, de facto custodians are individuals who have been the primary caregiver and financial supporter of a child who has resided with them for at least (a) six months, if the child is less than three years of age; or (b) one year, if the child is age three or older. However, any period after a child custody proceeding has commenced may not be included in determining whether the child has resided with the person for the required minimum period.

For the purposes of Indiana family law, the definition of a de facto custodian used above may only be applied to three specific legal matters: temporary placement, third party custody, and determining who are the relevant parties in a custody proceeding. The term does NOT apply to or include a person providing care for a child in a foster family home.

Temporary Placement in Indiana

The laws governing the temporary placement of a child taken into custody in Indiana are contained in Indiana Code 31-34-4. These laws apply when a child who is alleged to be a child in need of services is taken into custody under an order of the court for an out-of-home placement. As prescribed by Indiana Code 31-34-4-2, when an out-of-home placement is ordered by the court, the Department of Child Services is responsible for that placement and care and must consider placing the child with either a suitable and willing relative OR a de facto custodian, with preference being given to relatives, prior to considering any other out-of-home placement.

If a de facto custodian in Indiana is chosen by the Department of Child Services as the leading candidate to assume temporary placement, the Department shall complete an evaluation of the individual’s home and conduct a criminal history check of every person currently residing in that location. If a person residing in the location is found to have (a) committed an act resulting in a substantiated report of child abuse or neglect; (b) been convicted of a nonwaivable offense (see Indiana Code 31-9-2-84.8); or (c) had a juvenile adjudication for an act that would be a nonwaivable offense, if committed by an adult; the Department may not place the child under the temporary care of the de facto custodian.

Under some circumstances, however, the court may order (or the Department may approve) an out-of-home placement with a de facto custodian who was otherwise disqualified due to the results of the criminal history check. They may occur if the placement is in the best interest of the child; the relevant individual meets certain criteria; and the report, conviction, or adjudication in question is deemed not relevant to the person’s present ability to care for the child. When making such placements, the department shall consider the following factors:

  • the length of time since the person committed the offense, delinquent act, abuse or neglect
  • the severity of the offense
  • evidence of the person’s rehabilitation, including their cooperation with a treatment plan, if applicable

Third-Party Custody in Indiana

Generally, third party custody is a legal avenue that a person who is not the biological parent of a child may pursue in order to gain legal custody of a child. Most often, third party custody is granted when parents are unable to provide adequate care as a result of significant issues that impact their ability to provide for the child’s well-being.

Technically, under Indiana Code 31-17-2-3(2), anyone may petition the court for a determination of custody of a child, provided they have sufficient evidence to demonstrate a significant bond between them and the child. However, the most effective path towards gaining third party custody is by demonstrating that the person seeking custody has been a de facto custodian to the child. When a court makes this determination, the de facto custodian may then, under Indiana Code 31-17-2-8.5, be made a party to custody proceedings and initiate a custody modification to seek legal custody over the biological parents.

The Role of De Facto Custodians in Child Custody Proceedings

In child custody proceedings, courts must make orders that are in accordance with the best interests of the child checklist, without presumption favoring either parent. When making such orders, Indiana Code 31-14-13-2 requires courts consider all relevant factors, including:

  • the age and sex of the child
  • the wishes of the child’s parents
  • 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
  • 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
  • the child’s adjustment to home, school, and community
  • the mental and physical health of all individuals involved
  • evidence of a pattern of domestic or family violence by either parent

On top of those factors, the court must also consider evidence that the child has been cared for by a de facto custodian in Indiana. If the evidence is sufficient to demonstrate that the child has, in fact, been cared for a by de facto custodia, the court shall consider:

  • The level of care, nurture and support provided to the child by the de facto custodian
  • Why the child was placed with the de facto custodian in the first place
  • Why the child has remained in the custody of the de facto custodian
  • The wishes of the de facto custodian

Given all of this, it is quite clear that a person found to be a de facto custodian by the court can play a large role in determining the outcome in a custody proceeding. In fact, under Indiana Code 31-14-13-2.5(d), the court may even award them custody of the child, if it is deemed to be in their best interest. When this occurs, the de facto custodian is considered to have full legal custody under Indiana law; which, under some circumstances, could mark a huge loss to the biological parent(s).

Talk to an Indiana Child Custody Attorney Today

Whether it’s through providing everyday care or through their involvement in legal custody proceedings, these de facto custodians in Indiana often play a crucial role in shaping a child’s future. The legal system in Indiana acknowledges this by giving significant consideration to the child’s relationship with their de facto custodian, alongside other factors, when making custody determinations.

For those considering becoming a de facto custodian or those already in such a role, it’s essential to understand both the responsibilities and rights that come with this position. It’s not a role to be taken lightly, as it involves both the child’s well-being and future. Moreover, for biological parents and other parties involved in a custody dispute, it’s crucial to recognize and respect the significant role de facto custodians play in the outcome of the custody proceeding.

If you find yourself navigating this challenging terrain, it would be wise to retain the counsel of an attorney with extensive experience navigating child custody proceedings. At Keffer Hirschauer LLP, our experienced family law attorneys are committed to offering compassionate and comprehensive support to those involved in de facto custodianship cases. We understand the emotional and legal complexities involved and are dedicated to helping our clients achieve outcomes that are in the best interests of the children involved.

To speak with an Indiana family law attorney today call 317-751-7186 or complete our online contact form to schedule a free consultation. Remember, in the realm of child custody and de facto custodianship, informed and thoughtful decisions can make a significant difference in a child’s life.

What is a De Facto Custodian in Indiana?
Article Name
What is a De Facto Custodian in Indiana?
This article addresses the role of a de facto custodian in Indiana, and how they can impact certain child custody proceedings
Publisher Name
Keffer Hirschauer LLP

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