American families are changing. While families traditionally consisted of a father, a mother, and some children, modern families are increasingly diverse. In 1950, married-couple households represented seventy-eight percent of families; in 2000, they represented only fifty-two percent. Nationally, more than 2.4 million grandparents are their grand-children’s primary caregivers.
With these changes, “persons outside the nuclear family are called upon with increasing frequency to assist in the everyday tasks of child rearing.” These caregivers frequently lack legal authority to effectively parent: they cannot sign school permission slips, consent to medical care, secure public assistance, or obtain proper health insurance for children in their care. In response, several states, including Indiana, have enacted third-party custody and visitation statutes. While these changes were meant to assist third parties who are legitimately caring for others’ children, they pose a constitutional threat to natural parents capable of caring for their own children.
This Note examines Indiana’s third-party custody and visitation statutes for violations of constitutional parental rights. Part I of this Note traces the evolution of parental rights jurisprudence at the United States Supreme Court level, beginning with Meyer v. Nebraska and continuing to the most recent developments in Troxel v. Granville. Part II synthesizes the cases to define the current scope of parental rights. Part III describes Indiana’s child custody statutes and related case law. Part IV analyzes several potential constitutional challenges to Indiana’s child custody statutes based on the understanding of parental rights discussed in Part II. Finally, the Note concludes by proposing solutions that would protect parental constitutional rights while allowing third parties to have custody in legitimate cases.
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