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Posted on: Jun 7, 2019

“Next Friends” in Indiana

By Nicole L. Goodson, Kids' Voice of Indiana

There is no statutory definition of “next friend” in Indiana, but the common law definition is “[an] individual who acts on behalf of another individual who does not have the legal capacity to act on his or her own behalf.” Historically, a “next friend” was defined as “one who, without being regularly appointed guardian, acts for the benefit of an infant, married woman, or other person, not sui juris,” A Law Dictionary, Adapted to the Constitution and Laws of the United States, by John Bouvier (1856). Many states no longer use the term “next friend”, and instead have adopted the term “guardian ad litem."

Indiana uses both “next friend” and “guardian ad litem,” and a general power of appointment for both roles is granted to courts in IC 34-9-2-1, where the terms are not combined but instead are mentioned separately. This indicates the terms are not, in fact, interchangeable in Indiana, and Indiana continues to utilize the “next friend” term. Specifically, courts are granted the authority to “permit any person, as next friend, to prosecute a suit in a minor’s behalf.” Id.  IC 31-14-5-2 further addresses a “next friend” in paternity actions, noting that  “[a] person who is otherwise incompetent may file a petition through the person’s guardian, guardian ad litem, or next friend.” Indiana courts have relied upon both the common law definition and these statutes to interpret who, and when, a “next friend” is appropriate.

In RJS v. Stockton, 886 N.E.2d 611 (Ind. Ct. App. 2008), the Indiana Court of Appeals rejected the argument that a minor’s paternal grandparents should be able to pursue a paternity action on behalf of their minor grandchild as “next friends.” The court grants that “[t]here is no limitation provided in the statute as to who may act as the child's next friend.” Id at 614-615, citing Hood v. G.D.H. by Elliott, 599 N.E.2d 237, 241 (Ind.Ct.App. 1992). However, the court went on to state that while

“[i]t is conceivable that there could be a situation where a child has no physically present natural parents and no court-appointed guardian, in which case a third party could initiate a paternity proceeding on the child's behalf as a next friend. Here, R.J.S. has a living natural mother and two court-appointed guardians, his maternal grandparents. The law has entrusted safeguarding of his interests to those persons. It is up to those persons to decide whether to initiate a paternity proceeding on his behalf. The Mullens are not entitled to circumvent the authority entrusted in R.J.S.'s natural and court-appointed guardians by filing a paternity action as his next friend.” Id at 615.

Thus, in the absence of a true statutory definition of “next friend,” Indiana grants a minor’s parents and court-appointed guardians the authority to file petitions on behalf of a minor as “next friend." Other parties might be granted the authority to do so under the Stockton analysis above, but arguably it would be possible only in very narrow circumstances where a minor child does not have a parent or guardian available to do so.  

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