Child custody fights between parents, while potentially sad, are not uncommon and are not likely to evoke a strong reaction from outsiders. When, however, individuals other than the parents seek custody of a child, people tend to pay more attention, noting that such an arrangement seems unusual and somewhat unnatural. There are certainly circumstances warranting such an arrangement that do not involve abusive or negligent acts by the parents – death, major illness, or physical disability are examples of situations that could warrant resting child custody with a relative or another adult. Unfortunately, many involve parents who lose custody of their children due to issues with abuse, abandonment, or neglect.

A recent decision by the Indiana Supreme Court involves a mother who temporarily lost custody of her daughter after an arrest. The Supreme Court noted that any individual can bring a custody petition connected with divorce, legal separation or child support actions. In fact, Indiana law has a provision in which a court will consider giving custody to someone other than a parent if that person has been acting as the child’s substitute caretaker for a significant period of time. A court also has the option to appoint a temporary custodian in certain circumstances. An overview of the rules for giving custody of a child to a non-parent will appear below.

De Facto Custodians

If a court determines a child has been cared for by someone standing in as a de facto custodian, it can grant legal custody to this person if it is in the best interests of the child. The specific factors a court looks at for de facto custodian custody awards include:

• The wishes of the de facto custodian;
• The extent of the custodian’s care, nurturing and support of the child;
• The reasons behind a parent’s decision to place the child with the custodian; and
• Whether the child was placed with the custodian so the parent could look for a job, continue employment or attend school.

As noted above, this type of petition will only be considered if the parent is currently seeking custody.

Temporary Custodians

Temporary custodians are used when a non-custodial parent’s parenting time privileges have been limited or suspended. Specifically, if the court has ordered all visits between the non-custodial parent and the child must be supervised or completely suspended a non-custodial parent’s right to see his or her child, a court will appoint a conditional custodian or caretaker. Restrictions on parenting time with the non-custodial parent are used when the court believes the child is at risk of suffering harm to his/her physical health or emotional development. An example would be a conviction for domestic or family violence witnessed or overheard by the non-custodial parent’s child. The appointed party will receive custody of the child upon the death of the custodial parent, and will have the ability to petition a court for temporary guardianship over the child. Just as in the case of de facto custodians, this appointment must be connected with an existing child custody or parenting time rights case.

Speak to a Family Law Attorney

Who receives physical custody of a child is a crucial decision in any divorce or family law case, and involves a court assessing a substantial list of factors. Having a lawyer on your side is important to persuading a judge that your position is the best choice. Christopher L. Arrington represents clients in the Indianapolis area and will advocate for the solution that is best for your family. Contact him to schedule an appointment.