By Katherine Meger Kelsey, Kids' Voice of Indiana
There are several competing demands when it comes to nonparent parties requesting guardianship or third party custody of a child, and where to file that request is one of those demands. The issue of where to file has been a matter that has come up repeatedly amongst attorneys, and attorneys are often facing competing concerns of convenience as well as other specific issues. Third party custody and guardianship are essentially the same thing; the main difference is where the nonparent would file the request. One is not more permanent or easier to obtain than the other, and in fact, the case law standards for whether a request for guardianship or third party custody should be granted are the same.
Generally, a nonparent would request guardianship of a child if: (1) both of the child’s parents are deceased; (2) the parents were divorced, but one of the parents is now deceased; (3) the child’s parents remain married to each other; (4) the child was born to unmarried parents and paternity was never established; (5) the child was born to unmarried parents and paternity was established by paternity affidavit, not through a court case; or (6) if the child has been found to be a CHINS because the Department of Child Services has filed a CHINS case and the CHINS case remains open, the Judge may appoint a legal guardian as a permanency plan for the child.
If there is a dissolution of marriage case, and both divorced parents are still alive, then the nonparent would file a request for third party custody in the dissolution of marriage case. Domestic relations courts lose jurisdiction over a dissolution of marriage case when one party dies, which is why both parents to the dissolution of marriage case must still be alive in order for a nonparent to file there. If one of the parents in a dissolution of marriage case is deceased, the nonparents should file his or her request for guardianship in probate court. There are complicated exceptions to this rule, which can be found in In Re Custody of G.J., 796 N.E.2d 756 (Ind. Ct. App. 2003).
If there is a paternity case where paternity was established in court, then the request for third party custody should be filed in the paternity case. Paternity jurisdiction survives the death of the parents; if one or both parents are deceased, the request for third party custody should still be filed in the already existing paternity case.
In order to assist with the process of determining whether to file a request for guardianship in probate court, or to file a request for third party custody in a paternity or domestic relations court.
For an informational flow chart useful in determining jurisdiction, click here.
For a more in-depth discussion of the issue of third-party custody, guardianship, and jurisdiction issues, click here.
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