Justices: Custody petition permitted during CHINS case

The Indiana Supreme Court reversed a trial court, ruling an aunt and uncle could bring a custody action despite a child in need of services case that was pending for the child in Posey Circuit Court.

A mother admitted her daughter was a CHINS, and began receiving services. The child was staying with relatives when the child’s paternal aunt and uncle filed an emergency petition for custody in the same court where the CHINS case was pending. Since then, the child was placed in foster care because the mother was arrested. The child had previously been removed from aunt and uncle’s care when aunt tested positive for methamphetamine.

A hearing was held, and the trial court determined aunt and uncle did not have standing to bring a custody action and the court did not have jurisdiction while a CHINS case was proceeding. The Indiana Court of Appeals affirmed the trial court.

The CHINS case involving the mother and daughter was terminated in July 2015 and the mother was reunited with the daughter, so the aunt and uncle would be free to file an independent custody action if they chose, meaning the questions is moot. However, Justice Steven David wrote that In RE the Custody of M.B. B/N/F S.C. and D.C. v S.B. and S.W., 65S04-1604-MI-00180, still had great public interest. 

“(W)e seek to clarify when a suitable third-party may initiate an independent custody action and address jurisdictional question that has been presented,” David wrote.

The court said the trial court did have jurisdiction to consider the petition under Indiana Code 31-17-2-3(2), which says a person other than a parent has grounds to seek custody of a child that is not incidental to marital dissolution, legal separation or child support action.

David also said a CHINS case and custody action, although different, have the same subject matter, the care of the child. Because of that, the circuit could have allowed the aunt and uncle to file their independent custody action but stay it until the conclusion of the CHINS proceeding. David said a court of concurrent jurisdiction should abstain from exercising that jurisdiction when subject matter is before another court, but abstention is not the same as being divested of jurisdiction, only the postponement of exercise.