Guardianship and Third-Party Custody In Indiana

It is sometimes the case that neither of a child's biological parents are able to care for a child for a variety of different reasons. When this situation arises, it becomes necessary for a non-parent (or "third party") to be appointed as guardian or custodian of the child. Being appointed as a guardian or custodian of a child typically provides an individual the right and responsibility to make decisions concerning a child's upbringing, including the child's education, healthcare, and religion. Rights and duties may be limited by the court as dictated by a child's best interest.

Guardianship versus Third-Party Custody

"Guardianship" and "Third-Party Custody" are terms which are often interchangeably used. While guardianship and third-party custody situations are similar in many respects, important differences exist between the two actions for purposes of determining which type of action to file. For example, if a child's parents have filed a dissolution proceeding, or have had a paternity adjudication, a third-party would be required to file any request to be appointed a custodian with the court having original jurisdiction over the divorce or paternity matter. This third-party individual would file an action for "third-party custody" rather than an action for "guardianship." However, if the child has been determined to be a "Child In Need of Services" (CHINS), the presiding juvenile court would have jurisdiction. In this case, a CHINS guardianship would be applicable. If you find yourself faced with the possibility of becoming a guardian or third-party custodian, it is very important to consult with an attorney to help identify your best course of action given your situation.

Best Interests Standard

Indiana law presumes that it is in the best interest of a child for that child to be with their parents rather than with a guardian or third-party custodian. However, this presumption may be rebutted in various ways. For example, if a court finds that a parent is unfit or has abandoned a child, the appointment of a guardian or third-party custodian may be appropriate. Additional evidence may also include multiple factors, such as persistent unemployment resulting in an inability to provide for a child, deplorable home conditions, or evidence that a child is not physically or emotionally thriving in his/her current living situation. In most cases, there is not one single factor that gives rise to concerns for a child's well-being. The court typically will consider the totality of the evidence presented. If the court finds that the presumption in favor of the parents has been rebutted, a third-party will also need to demonstrate a strong emotional bond with the child, in addition to an ability to provide for the child emotionally and physically.

Parenting Time and Modification

Where there exists a guardian or third-party custodian, a natural parent will still be entitled to parenting time with their child, unless such parenting time might endanger a child's physical or emotional health and well-being. The particular circumstances of the case will dictate the amount and duration of reasonable parenting time. It is often the case that the Indiana Parenting Time Guidelines will be applicable.

Guardianships and third-party custodianships can be terminated or modified after their initial establishment if it can be shown that there has been a substantial change in circumstances and that termination or modification would serve a child's best interests. In looking toward the child's best interests, the court will assess multiple factors which effect a child's well being.

If you believe a child may be in need of a third-party custodian or guardian, or if you are a parent who believes your child is in need of a third-party custodian or guardian, we encourage you to contact us for more information and further assistance. We understand the highly emotional nature of these matters and have the experience to provide you the assistance in making difficult decisions. In addition to assisting with the determination of which type case you may need to bring or defend against, we also have the knowledge to prepare all aspects of your case, including investigation, witness preparation, discovery (written requests for information), obtaining relevant court documents and medical records, and providing recommendations for custody evaluators who can assist in guiding the court on the child's best interests.

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Schedule an appointment today to meet with an Indianapolis divorce lawyer at Hollingsworth & Zivitz by filling out an online contact form or call (317) Divorce. Hollingsworth & Zivitz serve clients in the greater Indianapolis area including Carmel, Fishers, Westfield, Noblesville, and Hamilton County, as well as Zionsville, Avon, Brownsburg, and the counties surrounding Marion County.