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Author Topic: "De facto custodian"... ?????  (Read 9466 times)


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"De facto custodian"... ?????
« on: Nov 30, 2004, 09:34:47 PM »
Has anyone lost their custody case because of the "de facto custodian" law?

I am looking for case histories on this topic,,,

      * Did you lose custody because of this law?

      * Was this law used in the wrong context in your case?

      * Were you able to regain custody after someone else was
         given de facto custodian status?

What I know about "de facto custodian"

   *This status is used after a child has been with a guardian,
    family member, foster caregiver, etc,,, for 6 months or more.

   *De facto custodian status gives the guardian, family member,
     caregiver etc,,, the same rights (equal footing) as a biological parent.

   *De facto custodian is usually given to a person when the child they
     are caring for has been abandoned by one or both parents.

If I am wrong about any of this please let me know. I need to know as much as I can about this BEFORE December 14, 2004. I lost custody of my daughter to MY mother because of this law and I need to find out if this law was used in the wrong context as far as my case is concerned.

Does anyone have any website, book, or article  suggestions?  

Any help you all can give me would be greatly appreciated.


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« Reply #1 on: Nov 30, 2004, 11:46:35 PM »
It really depends on the state involved,,



Indiana:   http://www.binghammchale.com/pages/attorneys.asp?Action=GetHTML&PublicationID=59&PageTextID=37

The Indiana Court of Appeals recently decided that a third party may seek custody of a child by filing a direct cause of action for custody pursuant to the child custody statutes of Indiana Code § 31-17-2-3 provided, however, that the child custody proceeding is independent of a marital dissolution action.  The court reasoned that it has long been a policy that if a parent is unfit or otherwise unable to care for a child, it may be in the best interest of the child to be placed in the custody of a third party.  Prior to this recent case, there was confusion whether third parties seeking custody were required to file a guardianship action under the probate code.  It is clear now that third parties who wish to obtain custody of a child may directly file an action under the family law code!


Third Parties Have Standing to Pursue Custody of a Child in a Direct Cause of Action:


In In re the Custody of G.J v. Godbey, the brother of deceased husband filed a petition seeking the custody of the husband's child claiming that the wife's new spouse was a convicted child molester who also collected child pornography.  The Indiana Court of Appeals, as a matter of apparent first impression, concluded that subsection two of Indiana Code § 31-17-2-3 allows a third party to directly file a petition for child custody.  Section  § 31-17-2-3 of the Indiana Code expressly provides:


A child custody proceeding is commenced in the court by:


A parent by filing a petition under IC 31-15-2-4 [governing commencement of dissolution actions], IC 31-15-3-4 [governing commencement of legal separation actions], or IC 31-16-2-3 [governing commencement of child support actions]; or

A person other than a parent by filing a petition seeking a determination of custody of the child.


The Indiana Court of Appeals interpreted subsection 2 to mean that any person "other than a parent may file a child custody petition "at any time and without limitation."


The Indiana Court of Appeal's Rationale:


The court first noted that the absolute bar preventing third parties from obtaining custody of a child was removed by amendments to the child custody statutes in 1999 permitting de facto custodians to pursue custody of a child.  A de facto custodian is a person who is found to be the primary caregiver for a child who has resided with the person for at least six months if the child is less than three years of age or one year if the child is at least three years of age and has provided that child with financial support.  The court explicitly held that subsection two of I.C. 31-17-2-3 could not be interpreted to require a party seeking custody to be a de facto custodian.  The court found that if the Legislature had intended only to allow de facto custodians to file a direct child custody action, the Legislature would have amended I.C. 31-17-2-3 the same time it added the de facto custodian amendments and would have explicitly provided that only de facto custodians could file a petition seeking custody if that is what was intended.  The court refused to find that the Legislature meant that only de facto custodians could file a petition in light of the fact that I.C. 31-17-2-3(2) existed before de facto custodians were even explicitly recognized.


Furthermore, while the court acknowledged that the Indiana Code defined "child" to mean a "child or children of both parties to the marriage" and further noted the term only includes biological or adopted children of both parties to a dissolution, the court determined that this particular definition of "child" only applied when adjudicating a divorce!  The court specifically noted that subsection two of I.C. 31-17-2-3 was not relevant just to dissolution proceedings because there is no such specific reference or limitation within the subsection.  Given that subsection two is not limited to divorce proceedings, the term "child" as found in subsection two, cannot be limited to biological or adopted children.  Therefore, to avoid rendering subsection two meaningless, the court found it must be interpreted to permit any person other than a parent to directly commence a child custody proceeding.


Finally, the court noted it was Indiana's public policy to recognize that it may be in the best interests of the child to be placed in the custody of a third party if a parent is unfit or otherwise unable to care for a child.


Maintaining a Direct Action for Custody: Burden of Proof:


While third parties may directly file an action for the custody of a child, they have a significant obstacle to overcome – the child's natural parent is presumed to be entitled to custody as opposed to a third party.  The third party can only overcome this presumption by demonstrating by clear and convincing evidence that the child's best interests would be substantially and significantly served by placement with the third party.  The presumption will not be overcome simply because "a third party could provide the better things in life for the child."  A generalized finding that a placement other than with the natural parent is in a child's best interests, however, will not be enough – detailed and specific findings are required.


Future Application:


This recent appellate court decision clearly follows the developing trend of viewing “families” in a broader manner.   The court recognizes the actual relationship of the child and an adult instead of only looking at who is the legal parent.

New Hampshire:


In the Year of Our Lord Two Thousand Three

AN ACT relative to de facto child custody.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Section; De Facto Child Custody. Amend RSA 458 by inserting after section 17-e the following new section:

458:17-f De Facto Child Custody.

I. A person who is the de facto custodian of a minor child may petition the court for custody of the child. In this section, "de facto custodian" means a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of 6 months or more if the child is under 3 years of age and for a period of one year or more if the child is 3 years of age or older or has been placed by the department of health and human services. Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.

II. A person shall not be a de facto custodian until a court determines by clear and convincing evidence that the person meets the definition of de facto custodian in paragraph I. Once a court determines that a person meets the definition of de facto custodian, the court shall give the person the same standing in custody matters that is given to each parent under this chapter.

III. The court shall determine child custody in accordance with the best interest of the child and shall give equal consideration to each parent and to any de facto custodian. The court shall consider all relevant factors including:

(a) The wishes of the parent, child, and de facto custodian as to custody.

(b) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian.

(c) The intent of the parent or parents in placing the child with a de facto custodian.

(d) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence, as defined in RSA 173-B, and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.

IV. The petition for de facto custody shall be entered in the superior court which has jurisdiction over the divorce, legal separation, or other proceeding brought under RSA 458; in the case of death of a parent, stepparent adoption, or unwed parents, the petition shall be entered in the superior court located in the county where the child resides.

V. Upon the motion of any original party, the court may modify or terminate any order made pursuant to this section to reflect changed circumstances of the parties involved.

VI. The court may grant joint custody to the child's parents, or to the child's parents and a de facto custodian, if it is in the best interest of the child. If the court grants custody to a de facto custodian, the de facto custodian shall have legal custody of the child under New Hampshire law.

2 Support and Custody of Children; Grounds for Modification; De Facto Custodian. Amend RSA 458:17, V(a)(3) and (4) to read as follows:

(3) The circumstances affecting the welfare of the child have been so greatly altered that there is a strong possibility that the child will be harmed if the child continues to live under the present arrangement; [or]

(4) If the court finds that a minor child is of sufficient maturity to make a sound judgment about his or her proper custody, the court may give substantial weight to the preference of the mature minor child as to the parent with whom he or she wants to live. Under these circumstances, the court shall also give due consideration to other factors which may have affected the minor child's preference, including, but not limited to, whether the minor child's preference was based on undesirable or improper influences[.]; or

(5) The custodian appointed under the prior decree has placed the child with a de facto custodian.

3 Support and Custody of Children; Reference to De Facto Custodian Added. Amend RSA 58:17, VI to read as follows:

VI. In making any order relative to such custody, the court shall not give any preference to either parent of the children because of the parent's sex. The paramount and controlling consideration in deciding child custody is the overall welfare of the child, and there is no one formula for all cases, each case being determined by its particular facts. Considerable weight may be given to the stated preference of a mature minor, provided that preference was not unduly influenced. If the court determines that it is in the best interest and welfare of the children, it shall in its decree grant reasonable visitation privileges to a party who is a stepparent of the children or to the grandparents of the children pursuant to RSA 458:17-d. Nothing in this paragraph shall be construed to prohibit or require an award of custody to a stepparent, [or] grandparent, or defacto custodian if the court determines that such an award is in the best interest of the child.

4 Effective Date. This act shall take effect January 1, 2005.

As you can see, while similar, it really depends on the state.


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