Indiana Law: Divorce and Paternity Colliding in a Custody Dispute

What happens when a marriage with four children begins as a divorce in one county and then mother files a paternity case in another county - and proves that one child of the four has another father? And what about the divorce court's decision to give the husband custody of all four children?

What happens? The case goes up on appeal. First to the Indiana Court of Appeals that affirms custody of three children and then to the Indiana Supreme Court. The case is IN RE THE MARRIAGE OF HUSS (PDF format).

The Indiana Supreme Court answered what was the effect of the paternity judgment in the dissolution proceeding (none; dissolution was filed first, the mother did not raise the paternity issue in the divorce court):

The wife contends that the dissolution court lacked personal jurisdiction over the child of which the husband was not the biological parent. We held in Russell that a dissolution court does not have jurisdiction to enter a custody order regarding children born during a marriage but whose biological father was not the husband. 682 N.E.2d at 517. But Russell also emphasized that, in contrast to cases where "the issue of whether a child is a child of the marriage may be vigorously contested," there are many cases in which "the parties to the dissolution will stipulate or otherwise explicitly or implicitly agree that the child is a child of the marriage." Id. at 518. In such cases, the determination that a child is a child of the marriage "is the legal equivalent of a paternity determination in the sense that the parties to the dissolution – the divorcing husband and wife – will be precluded from challenging that determination, except in extraordinary circumstances," but it will not preclude the child from separately seeking a paternity determination. Id.

(See pages 3 - 6).

The mother argued I.C. § 31-14-13-1 (giving sole custody to the biological mother of a child born out of wedlock) applied but Indiana Supreme Court shot down that argument:

Exceptions (3) and (8) appear applicable to the dissolution proceedings in the present case. Either the dissolution court is considering the award of custody of a child born outside the marriage, as under Russell, or, if not, then it was a court that had jurisdiction over the child. Thus the statutory assignment of the presumptive custody to the mother of a child born out of wedlock does not compel an award of custody to the wife in this case.

(page 7).

Since husband was not the father of the fourth child, this made the case one of third party custody for the fourth child. Mother argued there was insufficient evidence for granting husband custody of the fourth child. The Indiana Supreme Court reviewed the evidence and restated the law on third party custody:

After reviewing the approaches used in several cases in more recent years, we observed that in considering a request for child custody by a non-parent, a trial court must consider "the important and strong presumption that the child's best interests are ordinarily served by placement in the custody of the natural parent." Id. at 287. Not only does this presumption provide a measure of protection for the rights of the natural parent, but "more importantly, it embodies innumerable social, psychological, cultural, and biological considerations that significantly benefit the child and serve the child's best interests." Id....

To resolve the dispute in the caselaw regarding the nature and quantum of evidence required to overcome this presumption, we hold that, before placing a child in the custody of a person other than the natural parent, a trial court must be satisfied by clear and convincing evidence that the best interests of the child require such a placement. The trial court must be convinced that placement with a person other than a natural parent represents a substantial and significant advantage to the child. The presumption will not be overcome merely because "a third party could provide the better things in life for the child." In a proceeding to determine whether to place a child with a person other than the natural parent, evidence establishing the natural parent's unfitness or acquiescence, or demonstrating that a strong emotional bond has formed between the child and the third person, would of course, be important, but the trial court is not limited to those criteria. The issue is not merely the "fault" of the natural parent. Rather, it is whether the important and strong presumption that a child's interests are best served by placement with the natural parent is clearly and convincingly overcome by evidence that the child's best interests are substantially and significantly served by placement with another person....

(pages 7 - 10).

Still not an easy legal standard to explain to clients. I suppose the inelegant formulation of a legal standard for third party custody relates directly to the complexity of the issues between parent, child and third party.

Huss has one more point of importance regarding de facto custodians. The following is from footnote 3 on page 13:

Although not raised by the wife, there is an unresolved issue regarding whether "de facto custodian" status is a necessary prerequisite in a dissolution proceeding to a spouse receiving custody of a child for whom the spouse is not the biological parent. Several non-dissolution cases have held that a party who is not a natural parent need not allege or claim status as a de facto custodian in order to pursue custody. Allen v. Proksch, 832 N.E.2d 1080 (Ind. Ct. App. 2005) trans. not sought; In re the Custody of G.J., 796 N.E.2d 756, 761 (Ind. Ct. App. 2003), trans. denied; see also Nunn v. Nunn, 791 N.E.2d 779, 784-85 (Ind. Ct. App. 2003) trans. not sought. In dicta, however, the Court of Appeals in Custody of G.J. suggested that in a dissolution proceeding, the award custody of a child to a non-biological parent may be restricted only to a person who qualifies as a de facto custodian. Custody of G.J., 796 N.E.2d at 762. This conclusion is not expressly stated in the language of the de facto custody statutes, which define the term "de facto" and designate additional factors to be considered when considering a claim for custody by a de facto custodian....

I ran into a court who denied a third party custody petition on the grounds that my client was neither parent nor de facto custodian. See my post here.