Child custody: a de facto custodian and third party custody

When a parent leaves a child with another person, that person can become a de facto (Latin for in the fact) custodian. Indiana has a statute that tells us how one becomes a de facto guardian. Ind. Code § 31-9-2-35.5 defines a de facto custodian as a person who cared for a child:

1) six (6) months if the child is less than three (3) years of age; or (2) one (1) year if the child is at least three (3) years of age.

De facto custodians were the subject of today's Indiana Court of Appeals opinion in In Re the Marriage of Hugo M. Galicia v. Sherry Ann Babbs (NFP). (NFP means Not For Publication. Which, in turn. means that they cannot be cited in other cases as precedent. The Indiana Lawyer Blog has a post about NFP opinions that is very good about explaining the uses of a NFP opinion. So you cannot cite to this case but I do think that the NFP cases are good for researching and teaching uses. After all, one would expect a NFP to be not new law but a case that is far within the bounds of the law as it is.).

Having had several third party custody cases, I found this NFP opinion to be a good collection of citations and explanation of the law as it is. This is why I say that NFP opinions have value for research purposes. The cases cited by a NFP opinion provides a path for further research.

I am also finding that the NFP opinions sometimes have a better evaluation of the evidence and explanation of the appellate court's reasoning. However, I cannot say if this is not due to some prejudice of mine.

The case also explains the difference between an initial custody disposition and a custody modification. Generally speaking, I think most people would understand the difference. This case had the wrinkle of Hugo being given custody in a CHINS (Child in Need of Services) proceeding and then the divorce court making its own decision about custody.

Finally, a point that does not have to do with law but with the trial court handling the case:

The court noted it is likely that losing contact with Galicia will cause J.G. unhappiness and confusion. The court ordered that Babbs should obtain professional assistance to help J.G. transition from Galicia’s home to Babbs’ home and to report to the court and to Galicia, in writing, the name of the therapist selected and the substance of the therapist’s recommendations. Id. at 25. Further, the court noted that Galicia should continue to have contact with J.G. as recommended. Id. at 23.

I emphasized that second sentence, not the court. I am seeing that we need to be aware of those circumstances where social and psychological services are needed for the children and/or parents. So did the trial court in this case. I suggest you readers keep this in mind, too. Our family law system fails to provide all the relief some may think it should because the family law system was designed only for resolving legal issues.