A guardianship grants a person other than a parent legal and physical custody over a child. Third party custody also grants legal and physical custody over a child to a non-parent. Guardianship and third party custody actions protect a minor child under 18 years of age who is not emancipated. However, guardianship and third party custody are not interchangeable terms.
If a paternity adjudication or a dissolution of marriage proceeding has been filed with a separate court, the probate court does not have jurisdiction. The paternity or dissolution court has continuing jurisdiction over the child and is able to grant or modify custody to a third party.
Parties who seek guardianship or third party custody of a child are most often related to the child (grandparents, aunts, uncles, brothers, sisters). These individuals are worried that the child has been abandoned, abused, neglected or is currently at risk. Many petitioners are conflicted between wanting to protect the child and not wanting to alienate the child’s parents, who are typically close relatives. Contested third party custody proceedings are emotional and sometimes financially taxing on the petitioners and the child’s parents.
Indiana law presumes children should be in the custody of a parent. A rebuttal of this presumption requires the petitioners of the guardianship to present evidence showing unfitness, long acquiescence, or evidence that a strong emotional bond has formed between the child and petitioners. Finally, after showing at least one of the three factors above, the third party custody must substantially and significantly serve the best interest of the child. It is important to remember that the court will not grant third party custody just because a third party could provide a better life for the child.
Once third party custody is granted, the natural parents are entitled to parenting time. However, the court will balance the natural parents’ right to parenting time and the child’s physical and emotional well-being.
In order to terminate third party custody the natural parent must prove that modification was in the best interest of the child and there was a substantial change to one or more of the custody factors. Once this is met, the third party custodial must prove by clear and convincing evidence that the child’s best interests are substantially and significantly served by placement with the third party.
In addition, third party custody terminates when the minor child turns 18 years of age unless the minor child has been adjudicated an incapacitated adult.
Due to the highly emotional nature of third party custody cases, you want to ensure that your case is being handled by Carmel child custody lawyers who can approach your situation with a level head. Joshua R. Hains has a decade of family law experience and will bring his wealth of knowledge and keen understanding of the legal system to your unique case. Contact the office to set up a consultation.