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What Is Legal Versus Lawful Custody?

What Is Legal Versus Lawful Custody?

The terms “legal custody” and “lawful custody” are often used interchangeably among non-lawyers. However, they have very different legal meanings you should understand.  Both types of custody are “lawful custody” parents gain by virtue of having children (or adopting them). It is automatic. “Legal custody” only comes into play in a divorce (or paternity) case. Whether or not you are awarded “legal custody” in a divorce (or paternity) case, all parents have lawful custody of their children in the marriage and on divorce (or in paternity cases). “Legal custody” has a very specific meaning in the Divorce and Paternity Act.1 This blog explores the distinction between “lawful custody” and “legal custody”.

“Lawful custody” has no specific statutory definition under the Indiana (or Paternity) Divorce Act. However, it has powerful rights assigned to it that every parent should know they have again by virtue of having children.  By virtue of marriage and having children (or legally adopting children) parents have lawful custody. This means they have the right to raise their children versus any other party. This has been decided by the United States Supreme Court. In their decision Troxel decision2, the United States Supreme Court struck down a state statute that allowed third parties to obtain custody of children. The Troxel decision applies to married and divorced parents. You, by virtue of having children, have a fundamental right to raise your children over all other parties. You have “lawful custody”.

Third parties seeking a obtain “custody”, such as through Indiana’s de facto custody statute, must show that they have raised your children for a certain period of time and the parent has no statutory defense to name (i.e., they left their children with the grandparents or third party to go to school).3 If there is no statutory defense for the parent, the third party still has to show the children have become so bonded to/with the third party that to remove and return the children to the custody of their parent(s), the children will suffer significant emotional harm. Even with this showing, an award of third-party custody must be in the children’s best interests.

Thus, a grandparent who wants to see his or her grandchildren and raise them (or any other third party) cannot just petition for custody and win. They would have to show they have provided care, nurture and support, or custody and control over the children, for the requisite statutory period of time.4 The same evidentiary burden applies to any other third-party seeking custody. Even with this evidentiary showing, the court still has to find it is in the best interests of the children to award the third party physical custody and legal custody.

“Legal custody”, on the other hand, has nothing to do with a married or divorced parent's right to his or her children. That is “lawful custody”. “Legal custody”, on the other hand, only comes into play when parents divorce (or in paternity cases). At that time, the court must award “physical custody” of the children to one parent and Indiana Parenting Time Guideline time at a minimum to the other parent. “Legal custody”, on the other hand, has to do with who makes the children’s educational, medical and religious decisions. It is key to note that an award of joint “legal custody” does not require an equal division of physical custody.5

In determining whether an award of joint legal custody would be in the children’s best interests, “the court shall consider it a matter of primary, but not determinative importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall also consider; (1) the fitness and suitability of each of the persons awarded joint legal custody; (2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the children’s welfare; (3) the wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age; (4) whether the child has established a close and beneficial relationship with both of the person awarded joint custody; (5) whether the persons awarded joint custody; (A) live in close proximity to each other; and (B) plan to continue to do so; (6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.”

Thus, in the legal world “lawful custody” has a very different meaning than “legal custody”.  All parents have “lawful custody”. Parents involved in domestic litigation should be mindful of this distinction to get the most from their legal representation. This blog was written by attorneys at Ciyou & Associates, P.C., and is intended as general legal education. The blog is not written to be relied upon in any given situation or for any particular issue. It is not legal advice. It is an advertisement.


  1. Divorce is referred to herein, but there are mirror statutes in the Paternity Act so a discussion of one inherently addresses the other.
  2. Troxel v. Granville, 530 U.S. 57 (2000).
  3. Indiana Code section 31-17-2-8.5.
  4. A de facto custodian “means a person who has been the primary caregiver for, and financial support of, a child who has resided with the person for (1) six months if the child is less than three (3) years of age; or (2) one (1) year if the child is at least three (3) years of age.” Indiana Code section 31-2-2-35.5.
  5. Indiana Code section 31-17-2-14.
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