Tuesday, February 20, 2007

Third Party Custody in Indiana - Part 1

Custody cases usually involve the parents. When a person not the parent seeks custody, we call this third party custody. Indiana court have wrestled with this type of case for years. What follows is only an introduction to the law in this area.

Indiana has 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."

Because of this presumption, 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. Parents have only the preponderance of the evidence burden of proof when the matter is only between themselves.

The third party must prove by clear and convincing evidence that the parent is unfit or have acquiesced in or voluntarily relinquished custody to the third party. Such evidence rebuts the parental presumption and the third party moves to the next step in its case. That next step is proving that the child's best interests will be better served by placing the child in the custody of a third party compared to the natural parent.

If the third party wins, the third party has a even less stable custody order than would a parent. A parent may ask for a modification and the parent will generally have less of a burden of proof than the third party. For when a parent initiates an action to regain custody of a child that has been in the custody of another, the burden of proof stays with the third party. (In Re Custody of McGuire (1985), Ind.App. 487 N.E.2d 457, 460-1, citing Hyatte v. Lopez, (1977) 174 Ind.App. 1497, 366 N.E.2d 676, trans. denied).

No comments: