Saturday, December 29, 2007

Child Custody - Custodial Parent Dies, Does Non-custodial Parent Get Custody?

Not always. The answer starts with Indiana Code 29-3-3-6 which is a guardianship statute.

That statute restricts the usual rule that a non-custodial parent gets custody upon the custodial parent's death with two requirements:

  1. The surviving parent not granted custody of the minor in a dissolution of marriage decree (emphasis added); and
  2. At the time of the custodial parent's death, the surviving parent had supervised parenting time (visitation) under a dissolution of marriage decree (emphasis added); or
  3. At the time of the custodial parent's death, the court suspended the surviving parent's parenting time (visitation);
IC 29-3-3-6(g) sets out when the non-custodial parent does not get custody: "[t]he court shall appoint a guardian under this article if the court finds that the surviving parent is not entitled to the right of custody of the minor."

I emphasized above the words "decree of dissolution." Those three words should eliminate all use of the guardianship statute for paternity cases. However, paternity cases might find a back door into IC 29-3- 3-6 via IC 31-17-2-11. Under IC 31-17-2-11, the court appoints a temporary custodian for the child when a non-custodial parent has supervised visitation, the temporary custodian gets temporary custody of the child on death of the custodial parent, and the temporary custodian petitions the probate court under IC 29-3- 3-6. I think there exists a chance that there exists the possibility of a statutory deadlock when the case comes out of paternity court instead of divorce court. That does not mean a third party cannot seek custody of the child but they may not be able to use this statute.

Other than this temporary custodian, who may file for guardianship of the child? Anyone.

Relatives such as grandparents or uncles or aunts, or strangers. Remember filing and success at trial mean two different things. Nothing in these statutes changes Indiana's law on third party custody: the natural parent has a presumption favoring custody unless the third party rebuts the presumption and proves that the child's best interests are served by the third party having custody. For more on third party custody, I suggest you read my other articles on this subject. You can reach them by clicking on this link.


Anonymous said...

I have a question about holiday parenting time - everything I read refers to non-custodial parent. We have joint custody so I'm not sure if the same guidelines apply. I would appreciate any guidance. Thanks

Sam Hasler said...

You comment gives me an opportunity to add that the parties should read their Divorce Decrees. That document would set out who has physical custody of the children. If the Decree is not clear, then the lawyer representing anonymous needs to get a call.

Anonymous said...

What if the parents were never married and the mother has sole legal custody under Indiana law and the mother dies....does the father automatically get custody even though there is no court order regarding custody, support, or visitation?

Sam Hasler said...

Anonymous, if you read my article closely, you should have read that the statute appears to have a gap regarding paternity cases. I am not sure why you wrote that mother has sole custody but then write there is no custody order. I suggest that you get yourself to a lawyer if this situation is a major concern for you.

I would also suggest anyone else who has a child but were not married to write your state legislators.

Anonymous said...

If a child is born out of wedlock, the mother automatically has full custody of that child unless proven otherwise in court, or as it is in Indiana. I have been through this before, and I had concerns about my son's absent father. My son's father sued me when he was two, attempting to get visitation rights to our son. I asked my attorney who had custody, cause I didn't know ANYTHING about the custody laws at that time, plus I had always been told that neither parent has custody unless the courts decided. My attorney told me (who has been my attorney since 2004)said that since our son was born out of wedlock, I had sole legal custody. The prosecutor has even repeatedly told me that.

Anonymous said...

hmmmm something doesn't add up here. I have retained my attorney since 2004 and I live in Indiana. My oldest son was born out of wedlock and his biological father attempted to get visitation rights to our son when he was two years old. I was confused, didn't know what the custody laws were at that time and my attorney told me that since my son was born out of wedlock, REGARDLESS if the father's name was on the birth certificate or not (which it wasn't), I had sole legal custody until proven otherwise in the court of law. When I married at eighteen, I had two more children. Since my husband and I were married at the time of our children's births both of us had custody of our two small children until the judge decided who should retain custody. So, when we were going through a divorce and he ran off with both our children and refused to give them back, nobody was on my side until we FINALLY got into court. I called the law, Child Protective Services and NOBODY did anything cause we were married. I learned the hard way and I did retain custody of our children and I still have sole legal custody of my oldest son. What I am trying to tell everyone is, by being advised by my attorney, a Prosecutor and a Judge a mother has custody of a child automatically if the child was born out of wedlock.

Sam Hasler said...

I am not sure what does not add up here but might want to take a longer look around the blog and see what else I have written. There is one article where I discuss what you have written: