Indiana law addresses situations wherein the parent(s) of a child are no longer able to provide care or a child is otherwise in a distressed situation such that it may be appropriate for a non-parent to provide care.  If such a circumstance exists, it may be necessary to file for custody of the child or to establish a guardianship over the child.  A “third party” is considered someone other than the parents of a child.

To begin with, it is important to understand the difference between third party custody and guardianship.  If paternity has been established or a divorce case is pending, then an individual would have to file to establish third party custody in the court where the paternity or divorce case is pending.  In most other situation, a petition to establish guardianship is the appropriate manner in which to proceed.

Once it’s been determined where and what to file, in practical effect the goal is the same, that being to obtain a court order that a third party (non-parent) to have legal responsibility for a child.  In most situations, this will not be easy to accomplish.  It is presumed that a child’s best interests are served with a natural parent having custody.  To overcome this presumption, it must be shown that the parent(s) are unfit and incapable of providing care to the child or have otherwise abdicated their parental responsibilities.  It is not sufficient to only show that the third party can provide the child a better home.  It must be shown that there is a substantial and significant difference between what the parents can provide and what the third party can offer.  In some cases, this may be evident, for instance the parents are the subject of serious criminal charges.  In many cases, though, the circumstances are not that clear.

Proving that the parents are unfit is only the first step.  The next stage of the court’s analysis will focus on the individual seeking custody or guardianship.  It must be shown and concluded by the judge that placing the child with a third party is in the best interests of that child.

Whether a third party custody case or a guardianship proceeding, it is very likely that the case will be difficult and emotional for all parties involved.  This is particularly true if the parents are resisting the request.

Please contact us if you would like to discuss whether obtaining third party custody or guardianship of a child is possible.