On appeal from The Allen Superior Cour ">

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Date: 05-05-2022

Case Style:

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

Case Number: 21A-MI-00960

Judge: Melissa S. May



On appeal from The Allen Superior Cour

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

Defendant's Attorney:

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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.
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

Outcome: We grant rehearing to correct our mislabeling of Appellants’ underlying
proceedings, but we affirm our prior decision in all other respects

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