There are instances where a non-biological parent can request or obtain custody or parenting time rights, however, non-biological parents are at a disadvantage when asking for rights the child’s biological parent does not want them to have. This blog discusses what non-biological parents should know about child custody in Indiana and what options they may have when seeking, or intending to seek, custody or parenting time with the child they are helping to raise.
An adoptive parent is considered the biological parent of a child for all legal intents and purposes, including child custody (I.C. 31-19-15-2). This means that when a stepparent legally adopts a stepchild, the stepparent holds the same position towards the child as the natural parent, with all the rights and obligations that come with being a parent; including any right to custody and parenting time or obligation to pay child support. Adoption can be an excellent option for a non-biological or stepparent who wishes to obtain the same parental rights to a child as those conferred on the natural parent. These rights will include the right to request custody or visitation, should the marriage end or the other parent become unavailable or unable to care for the child.
Indiana’s custody order statute enumerates factors that the court must consider when determining the best interests of the child while making a custody award (I.C. 31-17-2-8). The list of factors includes evidence that the child “has been cared for by a de facto custodian” (I.C. 31-17-2-8(8)). De facto custodian is defined in the definitions section of the family law code as: “a person who has been the primary caregiver for, and financial support of, a child who has resided with the person for at least: (1) six months if the child is less than three years of age; or (2) one year if the child is at least three years of age.” (I.C. 31-9-2-35.5). So, if a non-biological parent has been the primary caregiver for the child and provided the majority of financial support, a custody order may be issued in their favor as a de facto custodian.
A party requesting custody of a child, however, need not be the child’s natural or adoptive parent, or de facto custodian. Indiana law permits any person to file a petition seeking custody of a child (I.C. 31-17-2-3(2)). Allowing petitions for custody by parties other than the child’s parent is consistent with public policy that if a parent is unfit or unable to care for a child, it might be in the best interests of the child for a third party to be granted custody (G.J., 796 N.E.2d 756 (Ind. Ct. App. 2003)).
In any of the above situations, the court will consider the best interests of the child factors contained in the custody order statute when making a custody determination. For an adoptive parent seeking custody, there will be no presumption in favor of the natural parent, and custody will be decided based solely on the child’s best interests (I.C. 31-17-2-8). When a de facto custodian requests child custody, the court will also consider the factors included in the consideration of de facto custodian factors statute in determining the best interests of the child (I.C. 31-17-2-8.5). Whether it is a de facto custodian or a third party seeking child custody, there is a presumption in favor of the child’s biological or adoptive parent or parents (I.C. 29-3-3-3).
A non-biological parent who has not adopted the child may also obtain custody or parenting time rights through an agreement reached during a divorce from the biological parent. Settlement agreements are contracts, and because the courts are hesitant to interfere with a parties right to contact, the majority of agreements in civil cases are approved and reduced to court order without much, if any, scrutiny. Settlement agreements in divorces may be submitted to the court for approval no less than 60 days after the date of filing of the original petition for divorce (I.C. 31-15-2-13). It should be noted here that divorcing parties are not free to contract away a child support obligation, and that the agreed amount must be in the child’s best interest (Schwartz v. Heeter, 975 N.E.2d 820 (Ind. App. 2012)).
Finally, the non-biological father of a child who was married to the child’s mother when the child was born, or if the child was born not more than 300 days after the marriage ended, is presumed to be the child’s biological father under Indiana law (I.C. 31-14-7-1). Assuming the father’s name is on the child’s birth certificate, the same custody statutes and presumptions discussed above as pertaining to an adoptive parent will apply.
If you are a non-biological parent involved in a custody dispute, or the non-biological parent of your child is fighting you for custody, the experienced attorneys at Ciyou & Associates, P.C. can help you protect your rights. 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.
