Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Scott Geels, et al. v. Desiree Morrow, et al.

Date: 05-05-2022

Case Number: 21A-MI-00960

Judge: Melissa S. May

Court:

COURT OF APPEALS OF INDIANA

On appeal from The Allen Superior Cour

Plaintiff's Attorney: Alexander N. Moseley and Bryan L. Ciyou

Defendant's Attorney:









Click Here to Watch How To Find A Lawyer by Kent Morlan



Click Here For The Best Indianapolis, IN. - Custody Lawyer Directory





Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.



Re: MoreLaw National Jury Verdict and Settlement



Counselor:

MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.




MoreLaw will publish litigation reports submitted by you free of charge

Description:

Indianapolis, IN - Custody lawyer represented Appellees with Establishing Custodian Status and Physical and Legal Custody of Minor Child.





Separate sections of the Indiana Code address guardianships and legal custody

by a de facto custodians. Compare Ind. Code § 29-3-5-3 (indicating findings

court must make to appoint a guardian) with Ind. Code § 31-17-2-8.5 (defining

circumstances under which de facto custodian can have "legal custody of the

child under Indiana law”). Nevertheless, both types of proceedings, when

commenced with regard to a minor, require inquiry into the existence of de

facto custodians, which are defined in Indiana Code section 31-9-2-35.5. See

Ind. Code § 29-3-5-4 (indicating court should consider any request by a de facto

custodian before appointing the guardian) & Ind. Code § 29-3-5-5 (indicating

where de facto custodians fall in order of those who may obtain guardianship of

a minor); and see Ind. Code § 31-17-2-8.5 (requiring court to determine first

whether child has been cared for by a de facto custodian).

Court of Appeals of Indiana |Opinion on Rehearing 21A-MI-960 | April 27, 2022 Page 3 of 4

[3] In addition, both types of proceedings require determination of what is in the

best interests of the minor. See Ind. Code § 31-17-2-8.5 (providing court may

award custody to de facto custodian "if the court determines that it is in the best

interests of the child”) & Ind. Code § 29-3-5-4(a)(9) (listing "best interest” as a

consideration for the court's guardianship decision). As a result, the types of

issues that arise on appeal of both types of cases is similar. See, e.g., In re

Guardianship of B.W., 45 N.E.3d 860, 866-7 (Ind. Ct. App. 2015) (using "best

interests” standard to determine if great aunt had overcome the natural parental

presumption in favor of granting mother custody of child where great aunt

sought to be child's guardian); and see In re Paternity of A.S., 984 N.E.2d 646,

652-3 (Ind. Ct. App. 2013) (using "best interests” standard to determine if

grandmother had overcome the natural parental presumption in favor of

granting mother custody in a case where grandmother filed for custody of child

as a de facto custodian), trans. denied. Furthermore, the standard by which the

two proceedings are reviewed on appeal are interchangeable.

1

See, e.g., In re

Custody of J.V., 913 N.E.2d 207 (Ind. Ct. App. 2009) (regarding custody by a de

facto custodian and relying on In re L.L. & J.L., 745 N.E.2d 222 (Ind. Ct. App.

2001) (guardianship of minor case), trans. denied; K.I. ex rel. J.I. v. J.H., 903

N.E.2d 453 (Ind. 2009) (guardianship of minor case); and In re Guardianship of

B.H., 770 N.E.2d 283 (Ind. 2002) (guardianship of minor case), reh'g denied);

1 A fact about which Appellants' counsel should be well aware, as they cited most of the cases we reference

herein in their original appellate brief. (See Appellants' Br. at 3) (Table of Authorities).

Court of Appeals of Indiana |Opinion on Rehearing 21A-MI-960 | April 27, 2022 Page 4 of 4

and see In re Guardianship of B.H., 770 N.E.2d at 286 (interspersing discussion of

guardianship and custody cases when determining the standard by which

guardianship cases should be reviewed).

[4] Because the appellate review standards for guardianship cases and de facto

custodian cases are used interchangeably by this court and our Indiana

Supreme Court, we are unpersuaded that our erroneous reference to their cause

as a guardianship proceeding warrants a reexamination of the merits of their

appeal. Ultimately, our decision rested on our affirmation of the trial court's

determination that Child's best interests were served by remaining in the

custody of her Mother. That determination prohibits a ruling in Appellants'

favor regardless of whether the proceeding was for guardianship or custody as

de facto custodians. Thus, we decline Appellants' request that we modify our

prior decision