IndyBar: What Do You Do When the Custodial Parent Passes?

kelsey-katherine-mug Kelsey

By Katherine Meger Kelsey, Kids’ Voice of Indiana

It’s a phone call or email that no family law attorney wants to hear in a divorce case — that the custodial parent has passed away in a case where the noncustodial parent had supervised parenting time. Apart from your own personal reaction, there are questions whirling through your mind — does custody automatically transfer to the other parent? Even if their parenting time was restricted? What action do I need to take regarding the custody of the child? Has the divorce case automatically closed? Is some kind of emergency guardianship necessary?

One of the first places you might want to turn is to IC 31-17-2-25. It’s a fun little statute that’s vastly underutilized in the right circumstances. If you have a DC case, where the noncustodial parent has restricted parenting time or you otherwise have concerns about the noncustodial parent, and the custodial parent dies or is otherwise unable to care for the child, take a look at this statute. It’s broader than the temporary conditional custodian statute (IC 31-17-2-11) because it does not require supervised parenting time for the noncustodial parent, and doesn’t require death for custodial parent.

IC 31-17-2-25 provides for the possibility of emergency placement with a person other than the noncustodial parent. If a person other than a parent files a petition seeking to determine or modify custody of a child, that person can request an initial hearing by alleging facts and circumstances which warrant emergency placement with a person other than the noncustodial parent. It’s of course subject to a final hearing. However, a court is not required to set an initial hearing under this statute if it appears from the pleadings that there is no emergency which would require placement with a nonparent other than the mere fact of the noncustodial parent’s existence, or if it appears from the pleadings that the petitioner does not have a reasonable likelihood of success on the merits, or if manifest injustice would result.

It certainly functions as a way to keep alive a DC case that would otherwise vanish into the ether upon the death of the custodial parent. There’s only one case that discusses it — Fry v. Fry, 8 N.E.3d 209 (Ind. Ct. App. 2014). That case held that the trial court did not commit any legal error in considering husband’s emergency petition and affirmed the order awarding custody of daughter to husband. In this case, husband filed into his divorce case with mother, asking for emergency custody of their common child and daughter, who was mother’s daughter. Daughter had no legally established or otherwise involved biological father. Mother had Huntington’s disease and it was impacting her ability to care for the children. Mother argued that husband couldn’t ask for custody of daughter in this case; the court said (1) IC 31-17-2-25 allows for emergency placement of a child with a person other than a parent; therefore, husband has a legal right pursuant to this statute to seek such relief; (2) a trial court adjudicating a dissolution may award custody to a de facto custodian, citing In Re Custody of G.J., 796 N.E.2d 756, 762 (Ind. Ct. App. 2003), trans. denied, and IC 31-9-2-35.5 (definition of de facto custodian); (3) husband was entitled to consideration in custody matters as a de facto custodian; (4) instead of appealing the trial court’s order which gave emergency custody to husband as erroneous, mother had acquiesced in the custody order, seeking only to exercise parenting time as the court ordered.

Although the Fry case involves a de facto custodian, the statute itself makes no mention of the necessity of a de facto custodian. If you have similar facts in a case, or a case where a third party wants to intervene into a dissolution case which is on the verge of being dismissed due to the death of a custodial parent, this statute and the caselaw could pave the way.•

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