Not that long ago step-parents had no custody or parenting time rights when divorcing the child’s biological parent. Even step-parents who cared for, supported, and helped raise the child for many years. The law is changing and granting step-parents more rights; however it has not quite caught up with the realities of the step-parent/step-child attachment when a step-parent becomes a caregiver to the children of the natural parent. This blog explores step-parents and child custody rights in Indiana and options for step-parents who have bonded with a step-child and wish to seek custody.
In 2008, the Indiana court of appeals established step-parents right to parenting time in Schaffer (Schaffer v. Schaffer, 884 N.E.2d 423 (Ind. Ct. App. 2008)). While some Indiana courts had been allowing step-parents visitation with their former step-children as early as the mid 1980’s, these cases were decided under Indiana’s statute allowing a third party to initiate child custody proceedings (I.C. 31-17-2-3). In Schaffer, Mother filed a petition to terminate Step-Father’s visitation with the child, citing her constitutional right to custody, care, and control of her child (Troxel v. Granville, 530 U.S. 57 (2000)) and the court’s reliance on the third party child custody statute when granting parenting time to step-parents. Mother contended that the grandparent visitation statute was the appropriate standard to apply when former step-parents sought parenting time with their step-children (I.C. 31-17-5). The court had previously discussed certain factors that must be taken into consideration when determining a child's best interests under the grandparent visitation statute. It first must presume that “a fit parent's decision is in the best interest of the child” (Crafton v. Gibson, 752 N.E.2d 78 (Ind. Ct. App. 2001)). Under this presumption, special weight must be given to a parent's decision to deny or limit visitation. The third party custody statute does not give any special weight to a natural parent’s decision not to allow custody or parenting time. The court agreed with Mother that step-parents should be held to the same standard as grandparents when seeking visitation.
In 2015, the Richardson court declined to apply the grandparent visitation presumptions to an initial parenting time order issued as part of a divorce (Richardson v. Richardson, 34 N.E.3d 696 (Ind. App. 2015). It further stated that visitation may be granted to a step-parent who can show the court that there is a custodial and parental relationship and that visitation is in the child’s best interests (citing Worrell v. Elkhart Cnty. Office of Family & Children, 704 N.E.2d 1027 (Ind.1998)). A step-parent wanting more than just parenting time may ask for custody under the third party custody statute, so long as there is no divorce, legal separation, or custody proceeding pending (Kids Voice of Indiana). This statute also governs custody in divorces and paternity cases, where both parties are the biological parents of the child. However, just as in step-parent visitation cases under the grandparent visitation statute, the step-parent will have to first prove that there is a custodial and parental relationship before the court will consider custody under the third party custody statute.
Once this relationship has been proven, the court will then determine what custody arrangement is in the child’s best interest, using the best interest factors from the custody order statute. These factors include, but are not limited to: the age and sex of the child, the child’s adjustment to his or her home, school, and community, the wishes of the parents and the child, with more weight given to a child’s wishes if he or she is at least 14 years of age, the bond that the child has with each parent and the child’s relationship with any other person who may significantly affect the child’s best interests, and the physical and mental health of all parties involved (I.C. 31-17-2-8). This code also provides that the court must consider evidence that the child has been cared for by a de facto custodian. If proven by clear and convincing evidence, custody may be granted to the de facto custodian, after consideration of the usual custody factors and additional those factors enumerated in the de facto custodian statute, which include the wishes of the de facto custodian, the degree to which the custodian has provided for the child’s care, and how the child came to be in the care and control of the custodian (I.C. 31-17-2-8.5).
Step-parents have also had some luck gaining custody as the child’s de facto custodian. This strategy works best for step-parents who have provided financial support to the child and been the child’s primary care-giver while the biological parent was absent from the home for long periods of time or who have performed at least 50% of the childcare regardless of the other parent’s absence or presence in the home. Childcare includes daily tasks such as preparing meals, bathing and dressing the child, helping with homework, attending school and extra-curricular activities, and scheduling and taking the child to doctor’s appointments.
As you can see, the laws governing step-parents and custody rights in Indiana are evolving, but still present many challenges for a step-parent who wishes to obtain custody of a former step-child. If you are a step-parent who believes that it would be in your step-child’s best interest for custody to be granted to you, the accomplished attorneys at Ciyou & Associates, P.C. will fight to protect your interests. This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.
