Legally Brief: What is a “de facto custodian” and can they get custody?

If someone who is not the child’s parent has been acting as the primary caregiver and primary financial supporter of the child for a certain period of time, the judge could decide that this person is a “de facto custodian” (but this would not apply if the person is providing care for the child in a foster family home). When determining the time period that the person would have to be performing the role as primary caregiver and financial supporter, the law only allows the time to be counted if it is before a custody case has been filed. The required time periods and are as follows:

  • for a child who is under age three, the person would have to be caring for the child in this way for a period of six months or more;
  • for a child who is age three or older, the person would have to be caring for the child in this way for a period of one year or more.1

If the judge believes that the non-parent is a “de facto custodian,” the judge will do the following:

  1. add the de facto custodian as a “party” to the custody case;
  2. consider the following additional factors when deciding who should get custody (along with the factors listed in How will a judge make a decision about custody?):
  • the wishes of the child’s de facto custodian;
  • how much the child has been cared for, nurtured, and supported by the de facto custodian;
  • the reason why the child’s parent first placed the child with the de facto custodian;
  • the circumstances under which the child was allowed to remain in the custody of the de facto custodian, including whether the child was placed with the de facto custodian to allow the parent now seeking custody to look for a job, go to work, or attend school.2

The judge might even award custody to the de facto custodian instead of the parents if the judge believes that it is in the child’s best interests to do so.3

1 IN Code § 31-9-2-35.5
2 IN Code §§ 31-17-2-8(8); 31-17-2-8.5(b), (c)
3 IN Code § 31-17-2-8.5(d)

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