New Indiana Third-Party/De Facto Custodian Case

Having had a bit of drought of new family law cases from the Indiana Court of Appeals. One of the new ones is In the Matter of Custody of J.V.; D.V. v. J.L. . (PDF format)

The facts (page 2):

In May 2006, Mother, Eric L., and J.V., moved in with Grandmother‟s daughter, who lives three houses down from Grandmother. This arrangement lasted for approximately one year, and during that time, Grandmother cared for J.V. three to four days per week. Grandmother provided all basic necessities for J.V. while J.V. was in Grandmother‟s home, including diapers, food, and clothing. Grandmother also paid a babysitter if she had to work while J.V. was in her care and if J.V.‟s aunt was unable to care for her.

The trial court's decision (page 3):

On November 14, 2008, the trial court issued the following order:

1. That [Grandmother] meets the requirements of I.C. 31-9-2-35.5 and is named as Defacto Custodian of [J.V.].
2. The Referee now adopts the recommendations of the Guardian Ad Litem as follows:

A. Legal and physical custody of the child is awarded to the Defacto
Custodian, [Grandmother].
B. [Mother] shall have parenting time with the child pursuant to the
Parenting Time Guidelines with the following restrictions: No
overnight parenting time at present and no contact with [Eric L.] or
Brayton Tedder.

3. Both parties are ordered to refrain from smoking near the child.

The Court of Appeals begins its decision with a long quote from In re L.L. & J.L., 745 N.E.2d 222
(Ind. Ct. App. 2001), trans. denied, (long as in approximately a page long, page 3 - 4) as the basis for "a framework for trial courts to apply when considering a custody dispute between a natural parent and a third-party." (Page 3).

Here is how the Court of Appeals describes the role of de facto custodians in relation to third party cases (pages 5- 6):

Once a court determines a “de facto custodian” exists and that individual has been
made a party to a custody proceeding, in addition to the usual “best interests” of the child factors contained in Indiana Code sections 31-14-13-2 and 31-17-2-8, the court shall consider the following factors in determining the child‟s best interests:

(1) The wishes of the child‟s de facto custodian.
(2) The extent to which the child has been cared for, nurtured, and supported
by the de facto custodian.
(3) The intent of the child‟s parent in placing the child with the de facto
custodian.
(4) The circumstances under which the child was allowed to remain in the
custody of the de facto custodian, including whether the child was placed
with the de facto custodian to allow the parent seeking custody to:

(A) seek employment;
(B) work; or
(C) attend school.

Finally, “[t]he court shall award custody of the child to the child‟s de facto custodian if the court determines that it is in the best interests of the child.”

The Court of Appeals cites to, respectively, Ind. Code §§ 31-14-13-2.5(b) and 31-17-2-8.5(b)Ind. Code §§ 31-14-13-2.5(d) and 31-17-2-8.5(d) for the above statements. (Page 6). The Court of Appeals holds grandmother to be a de facto custodian.

Then comes the "gotcha" paragraph:

But while this evidence supports the trial court‟s determination that Grandmother
is J.V.‟s “de facto custodian,” the trial court was also required to consider whether
awarding custody of J.V. to Grandmother is in J.V.‟s best interests. In its order awarding custody of J.V. to Grandmother, the trial court failed to make this determination. Although there is evidence in the record suggesting that awarding custody of J.V. to Grandmother is in J.V.‟s best interests, we remand this case to the trial court with instructions to enter the findings required to support its custody determination. Such findings are particularly important in this case given the significant burden a third party must overcome to rebut the presumption that the natural parent should have custody of his or her child. See B.H., 770 N.E.2d at 287 (“A generalized finding that a placement other than with the natural parent is in a child‟s best interests, however, will not be adequate to support such determination, and detailed and specific findings are required.”)

The trial judge did not specify why grandmother was in the best interests of the child. Yes, there is evidence noted in the opinion that ought to show the natural parents are not in the child best interests. But third party case involve removing a child from its parents and because of many factors - including constitutional issues - require a more stringent set of findings than in a custody case between parents. Therefore, back to the trial for the trial judge to specify why placing child with grandmother is int he child's best interests.

Another way of looking at this issue: just because the parents are not in the child's best interests doe snot mean that the third party will be in the child's best interests.