Third Party Custody in Hamilton County, Indiana

Recently, I had an interesting experience with a grandparent visitation case in Hamilton County. "Interesting" having a similar meaning as in the purported Chinese curse.

Grandparent seeks custody of grandchild. Natural father does not oppose the grandparent but mother does and she is the custodial parent.

First, we file as an emergency petition for custody. That gets denied after jumping through some hoops that had me wondering what would have happened if the emergency involved blood and gore instead of just a threat of leaving Indiana and poor judgment. So the court denies our emergency petition.

Then court decides that grandmother must bring a guardianship and not a custody action. Why? The court wrote the following:

Intervenor cannot gain custody through this cause of action because she is neither a parent of the child nor a de facto custodian as defined in Indiana Code §31-9-2-35.5.

Which is poppycock. I had to spend some time explaining to the client how the court was wrong (after all, she said, the judge is supposed to know the law, right?) and restoring some lost confidence with the client (no, judges are just as human as the rest of us).

Why the judge ruled this way, I have no idea. The grandparent and mother solved the problem with the child without the court's aid. What I do know is this:

1. In 2003 the Indiana Court of Appeals ruled in In Re the Custody of G.J. that a third party could file a direct action for cusotdy under IC 31-17-2-3 without filing a guardianship petition.
2. The plain language of IC 31-17-2-3 has no limit to who can a third party petition for custody. The statute reads as follows and I have emphazised the section ruled upon in In Re the Custody of G.J.:

IC 31-17-2-3: A child custody proceeding is commenced in the court by:

(1) a parent by filing a petition under IC 31-15-2-4, IC 31-15-3-4, or IC 31-16-2-3; or
(2) a person other than a parent by filing a petition seeking a determination of custody of the child.

As added by P.L.1-1997, SEC.9.

Some still persist in using guardianship proceedings in cases of third party custody. I think it is a poor practice to use guardianship proceedings where either of the parents are living still. I admit no great wisdom in this but learned it from a late commissioner in Madison Superior Court 1. He chewed out my opposing attorney for using guardianship when custody was the better method. That was so long ago, I believe the first George Bush was still President. Custody of G. J. only reinforces that point.

I do like how the Indiana Court of Appeals concluded their decision in Custody of G. J.- there is something here for all of us to think upon and not only those in Hamilton County:

Certainly, Godbey has not cited nor are we aware of any case stating that a third party who wishes to obtain custody of a child must seek a guardianship under the probate code rather than seeking custody directly under the family law code. Indeed, it frankly would seem to make more sense to file an action that is truly a child custody action under the child custody statutes set forth in the family law code. It also appears to place form over substance to insist that a third party who wishes to obtain custody of a child must proceed under the guardianship statutes, where the law governing either type of proceeding will overlap significantly and especially where the plain language of Indiana Code Section 31-17-2-3(2) provides third parties with the option of directly filing a child custody petition under the family law code. Therefore, we conclude that Jenkins had standing to file a direct action for custody of G.J. under that section, as set forth in his petition filed with the trial court.

Update 5/11/08: With the foregoing, I was mostly interested in the grandparent/third custody part of the case. I see that I may not have explained very well what was wrong with the local court's imposition of its own, unwritten procedure for emergency custody. Rather than expand a rather long post even further, I suggest reading my Emergency Custody - A Starting Point for those interested in the subject of emergency custody.