Sunday, May 11, 2008

Indiana Emergency Custody/Third Party Custody - IC 31-17-2-25

I have written before about emergency custody but I have not mentioned IC 31-17-2-25 until now.

From what I can tell, the General Assembly passed IC 31-17-2-25 in 2006. A quick search of the online Indiana appellate opinions turned up no cases interpreting the statute.

The statute applies when the custodial parent or the child's guardian becomes unable to care for the child. The statute distinguishes between third parties and noncustodial parents - sort of - seeking to determine custody or modify a custody order. Without defining of what is meant by the phrase "unable to care for the child", this could cover a great deal of territory up to death. Why not death, too? It could but Indiana has a statute on this issue (Indiana Code 29-3-3-6). More that death and these statutes below.

I added "sort of " because (b) starts with the following language - "[e]xcept as provided in subsection (d), if a person other than a parent files a petition..." - but I find no reason in the language of (d) to explain the difference:

(d) A court is not required to set an initial hearing in accordance with this section if:
(1) it appears from the pleadings that no emergency requiring placement with a person other than the noncustodial parent exists;
(2) it appears from the pleadings that the petitioner does not have a reasonable likelihood of success on the merits; or
(3) manifest injustice would result.
At this point, I could make some guesses but they are probably more like throwing darts blindfolded. What leaves me with this feeling of blindfolded darts is (d)(1). For example: if the petitioner is the non-custodial parent is the petitioner, then there will be no initial hearing for what petitioner will file a petition that puts them in a bad light? I guess I do see some things: races to the courthouse by noncustodial parents and third parties for filing emergency custody, arguments over service, and standing of intervenors.

31-17-2-25(b) also sets out what must be contained in the petition: "...the facts and circumstances warranting emergency placement with a person other than the noncustodial parent, pending a final determination of custody." Any such petition comes under the general family law requirement that the petition must be signed and verified by the petitioner. 31-17-2-25(c) mentions that the petition can also contain a request for an initial hearing.

31-17-2-25(c) requires the court to set " initial hearing not later than four (4) business days after the petition is filed to determine whether emergency placement of the child with a person other than the child's noncustodial parent should be granted, pending a final determination of custody." Read (b) - (d) together indicates to me that a hearing is not required for a noncustodial parent who is the petitioner.

31-17-2-25 does not say what are the grounds for giving custody to a noncustodial parent. I think the simplest answer is that it incorporates Indiana's common law on third party custody. The phrase "requiring placement with a person other than the noncustodial parent" indicates to me that all the case law on third party custody law that might bar a noncustodial parent determines when placement with someone other than a noncustodial parent. I say (d)(2) and (3) only reinforce my belief that Indiana's case law on third party custody is relevant to the statute.

Death and this statute causes some concerns for me. As I mentioned above, Indiana Code 29-3-3-6 deals with the death of a custodial parent under very specific conditions such as the noncustodial parent being limited to supervised visitation. I wrote about in Child Custody - Custodial Parent Dies, Does Non-custodial Parent Get Custody? and some of the problems that might exist under this second statute. Where I see the race-to-the-courthouse scenario is between a case under IC 29-3-3-6 and 31-17-2-25.

What remains unclear to me is how this procedure relates to the procedure outlined in Emergency Custody - A Starting Point. If we are to look at the filing of the petition as the analog to the temporary restraining order referred to in my earlier post, then I think all is reconciled. If that the TRO analogy does not apply to a cause brought under this statute, then does the statute limit rule mentioned in my article to cases where the custodial parent is able to care for the child but other grounds exist for an emergency change of custody? Ah, the practice of law! More questions than there might be answers.

I want to touch briefly on one other concern with this statute. It will be brief due to it impinges on a current case of mine under Madison County's emergency custody procedure (I have written briefly on our local procedure here). I read the statute as establishing some akin to a provisional hearing in a divorce case. That is how I interpret this language: "...pending a final determination of custody." To me, the petition filed for emergency custody is not for just the emergency but also for custody. But then I have expressed this same opinion in Emergency Custody - A Starting Point.

Lastly, I have to say the statute certainly does not change anything I wrote about in Third Party Custody in Hamilton County, India. I think the statute contemplates a quicker resolution of the petition than I encountered in Hamilton County.

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