Introduction
When parents are unable or unwilling to care for their child—due to incapacity, neglect, illness, or other serious challenges—Indiana law allows certain non-parents to step into a parental role. Whether you are a grandparent, family member, or a close friend facing these circumstances, understanding your rights and the legal standards is vital. This pillar page covers all key aspects of third-party custody in Indiana, including the role of a non-parent custody lawyer, the unique rights of grandparents, and practical guidance for pursuing custody or visitation.
What Is Third-Party Custody in Indiana?
Third-party custody means someone other than the child’s biological or adoptive parents—often a grandparent, another relative, or a close family friend—seeks legal and/or physical custody of a child. This can arise when parents are unfit, absent, or otherwise unable to provide a safe and nurturing environment. Indiana courts view these situations with great care, always prioritizing the child's best interests.
Legal Foundations for Third-Party and Non-Parent Custody
Indiana law strongly presumes that children should remain with their biological parents, but creates legal pathways for third parties to seek custody in compelling situations. Under Indiana Code §31-17-2-3(2), any person may file a custody petition if they can show it serves the child's best interest—often based on parental unfitness or demonstrable harm to the child if returned to a parent. The court will consider substantial evidence before altering the parent-child relationship.
Who Qualifies for Third-Party Custody?
Any non-parent may seek custody but most often, it is:
- Grandparents
- Aunts or uncles
- Adult siblings or stepparents
- Family friends who have provided substantial care
The petitioner must generally prove that the child would be harmed if placed with a parent, or that the parent is unfit or unable to provide adequate care.
The Legal Process: How Non-Parents Can Seek Custody
The process involves:
- Filing a custody petition in the appropriate Indiana court (typically the court with jurisdiction over any existing custody or divorce case).
- Providing substantial evidence—documented proof, witnesses, and expert testimony—supporting the need for third-party custody.
- Attending hearings, during which the court will weigh the child’s current living situation, relationships, and parental circumstances against the evidence provided.
De Facto Custodians: Special Status for Primary Caregivers
Indiana recognizes “de facto custodians”—people who have been the child’s primary caregiver and financial supporter for a significant period (at least one year for children aged three or older, or at least six months for younger children). If you qualify as a de facto custodian, you may have equal standing with biological parents in custody proceedings.
Grandparents’ Rights: Custody and Visitation in Indiana
Custody
Grandparents may seek third-party custody when it serves the child’s best interests and parents are unfit or absent. The court still presumes that living with a parent is best, so the burden of proof is high—evidence of harm, neglect, or long-term primary caregiving is usually required.
Visitation
Grandparents can petition for visitation in limited scenarios, such as when a parent is deceased, parents are divorced, or the child was born out of wedlock. Courts will consider the strength and nature of the pre-existing relationship, the wishes of the child and parents, and overall impact on the child’s well-being.
Guardianship vs. Third-Party Custody: Key Differences
| Guardianship | Third-Party Custody | |
| Court | Probate Court | Family (Custody/Divorce) Court |
| Duration | Usually temporary or until revoked | Varies; can be revoked by the court |
| Parental Rights | Suspended for duration | May be limited/suspended, not terminated |
| Who Can File | Non-parents | Non-parents |
| Standard | Best interests of the child | Best interests, plus proof of parental unfitness |
| Revocation | By court order | By court order |
Legal Standards: “Best Interests of the Child”
All third-party and non-parent custody determinations are guided by the “best interests of the child” standard. Courts evaluate:
- The child’s physical and emotional needs
- The relationship between the child and the third party
- Evidence of abuse, neglect, or endangerment
- The wishes of the child and parents (as appropriate)
- The stability, continuity, and suitability of the third party’s home
Practical Challenges in Third-Party Custody Cases
Securing third-party custody is complex. The law gives great deference to parents’ rights, and the burden of proof lies with the petitioner. Petitioners should expect to provide robust evidence, withstand scrutiny, and possibly face contested, emotional litigation. That’s why consulting with a qualified non-parent custody lawyer is essential.
How a Non-Parent Custody Lawyer Can Help
An experienced non-parent custody lawyer will:
- Evaluate your unique case and advise you on your legal standing
- Gather and present evidence to support your claim
- Guide you through the complex procedural and evidentiary requirements
- Represent you in court or in mediation, always prioritizing the child’s best interests
Frequently Asked Questions
Q: Can a grandparent obtain full custody if the parents are still alive?
A: Yes, but only if the court finds the parents unfit, or that custody with the grandparent is clearly in the child’s best interest.
Q: What is the difference between third-party custody and visitation rights in Indiana?
A: Custody is about caring for and making decisions for the child. Visitation is the right to spend time with the child but does not include legal authority over them.
Q: Does third-party custody permanently revoke parental rights?
A: No. Parental rights may be suspended or limited, but not automatically terminated by third-party custody orders. Parental rights would only be fully terminated in adoption proceedings.
Q: What evidence must be shown for third-party custody?
A: Evidence that parental custody would harm the child, or that the parents are unfit, plus proof that third-party placement is in the child's best interest.
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This blog was written by attorneys at Ciyou & Associates, P.C., and this blog is not intended to provide specific legal advice or solicitation of services as this is an advertisement.
