“Lawful Custody” Means Legal, Court Ordered Custody…

Case: In the Matter of the Adoption of B.C.H., a Minor 
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Under the adoption statute’s requirement to give notice to, or receive consent from, persons having “lawful custody” of a child who is the subject the adoption, this term means legal, court-ordered custody of the child. Thus, Grandparents who asserted themselves to be de facto custodians of the child were not required to receive legal notice and/or consent to the adoption.

Mother gave birth to Child in 2007, out of wedlock, while still in high school. Mother lived in an apartment, and not with her parents. It was apparently uncontroverted that for most of the first few years of Child’s life, Child lived with the maternal Grandparents, spending only a day or two per week with Mother.

In 2010, Mother married Stepfather, who later initiated proceedings for Stepfather to adopt Child. Grandparents received no legal notice of the adoption, but they were aware it had been filed by Stepfather and they made no effort to intervene to contest it. After the adoption was granted, Mother and Stepfather took physical custody of Child back from Grandparents.

In 2012, Grandparents moved to re-open the adoption under a Trial Rule 60 motion, arguing that the adoption was granted improperly without their notice or consent. That motion was eventually denied, from which Grandparents appealed.

The Grandparents’ theory on appeal was that they had de facto custody of Child which, in turn, conferred upon them rights as having “lawful custody” under the adoption statute’s notice and consent provision for “[e]ach person, agency, or local office having lawful custody of the child whose adoption is being sought.”

The Court of Appeals acknowledged this case to present two issues of first impression in Indiana: (1) whether “lawful custody” under the adoption statute means the same as “legal custody” that has been ordered by a court; and (2) whether Grandparents qualified as lawful custodians by meeting the statutory qualifications for being de facto custodians.

After an extended review of the rules of statutory construction, and particularly the obligation to construe statutes in derogation of the common law narrowly, the Court concluded that “lawful custody” under the adoption statute means “legal custody” that has been ordered by a Court.

In addition, the Court concluded that, even a judicial finding that the Grandparents were de facto custodians of Child would not give them “lawful custody” of the Child for purposes of the adoption statute. “[Q]ualification as a de facto custodian — even through court order — does not automatically result in legal custody. It is merely one factor in support of an award of legal custody.”

Thus, the trial court did not abuse its discretion in concluding that the Grandparents were not subject to the notice / consent provision of the adoption statute and denying their Trial Rule 60 motion.

Judge Mathias wrote a separate opinion, concurring in result, expressing his belief that, having established themselves as de facto custodians of the child, the Grandparents were entitled to notice of the adoption. However, because in this instance the Grandparents were actually aware of the adoption as it was filed and failed to intervene and object, that actual notice satisfied the procedural notice requirement.

To view the text of this opinion in its entirety, click here: In the Matter of the Adoption of B.C.H., a Minor


The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.
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One Response to ““Lawful Custody” Means Legal, Court Ordered Custody…”

  1. Evan Guthrie says:

    Thanks for the explanation of lawful custody and the impact it has on family law.

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