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:
- The surviving parent not granted custody of the minor in a dissolution of marriage decree (emphasis added); and
- 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
- At the time of the custodial parent's death, the court suspended the surviving parent's parenting time (visitation);
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.