Pyle, J.
STATEMENT OF THE CASE
T.H. (“Grandfather”) and C.H. (“Grandmother”) (collectively, “Grandparents”) appeal the trial court’s order denying their motion for relief from judgment and motion to correct error concerning their son-in-law’s (“Stepfather”) adoption of their minor granddaughter, B.C.H.
We affirm.
ISSUES
1. Whether the trial court abused its discretion in denying Grandparents’ motion for relief from judgment based on its determination that Grandparents were not parties that were required to receive notice of, and give consent to, Stepfather’s adoption of B.C.H.
2. Whether the trial court abused its discretion in denying Grandparents’ motion to correct error.
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Pursuant to Indiana Code § 31-19-9-1, a trial court may only grant a petition to adopt a child who is less than eighteen (18) years of age if written consent has been executed by “[e]ach person, agency, or local office having lawful custody of the child whose adoption is being sought.” Likewise, Indiana Code § 31-19-2.5-3 provides that notice must be given to a “person whose consent to adoption is required under [I.C. §] 31-19-9-1.” The trial court equated Indiana Code § 31-19-9-1’s phrase “lawful custody” with “legal” custody and, based on this interpretation, determined that Grandparents’ consent was not required for the adoption because they did not have court-ordered custody of B.C.H.
On appeal, Grandparents argue that they had lawful custody of B.C.H. during the adoption proceedings because they qualified as de facto custodians by statute, even though the juvenile court had not yet adjudicated them as such. In order to address these arguments, there are two components to this issue that we must consider: (1) whether the phrase “lawful custody” is equivalent to the phrase “legal custody” for purposes of Indiana Code § 31-19-9-1, such that a lawful custodian must be court ordered; and (2) whether Grandparents qualified as lawful custodians by meeting the statutory qualifications for being de facto custodians. These are both questions of first impression in Indiana, and we will address each in turn. [Footnote omitted.]
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In light of this common law history of disfavoring the right of any party other than a child’s parents to object to an adoption, we hold that the adoption statute’s use of the phrase “lawful custody” under Ind. Code § 31-19-9-1(a)(3) is equivalent to “legal custody,” that is, court-ordered custody. Absent clear language from the Legislature, it is not our place to create a right where it has never before existed.
Likewise, because the trial court is only required to give notice to a “person whose consent to adoption is required under [I.C. §] 31-19-9-1,” we also will not create a right for parties without legal custody of a child to receive notice of adoption proceedings. See I.C. § 31-19-2.5-3. Grandparents note that there are instances where the Indiana Code requires notice to certain individuals even when their consent is not required. In support of this proposition, they cite Indiana Code § 31-19-4.5-2, which states that “if a petition for adoption alleges that consent to adoption is not required under [I.C. §] 31-19-9-8, notice of the adoption must be given to the person from whom consent is allegedly not required under [I.C. §] 31-19-9-8.” In turn, Indiana Code § 31-19-9-8 lists several instances where consent from certain individuals is not required. The only provision potentially applicable to Grandparents is Indiana Code § 31-19-9-8(a)(10), which states that consent is not required from “[a] legal guardian or lawful custodian of the person to be adopted who has failed to consent to the adoption for reasons found by the court not to be in the best interests of the child.” However, this requirement is not relevant to Grandparents for two reasons. First, Grandparents have not claimed that they failed to consent to the adoption for reasons found by the court not to be in B.C.H.’s best interests. Second, as we will address in the next section, Grandparents do not qualify as legal guardians or lawful custodians.
2. Grandparents’ De Facto Custodian Status
Because we have determined that the adoption statute’s reference to a person having “lawful custody” refers to an individual with legal custody of a child, we must next consider whether Grandparents had legal custody of B.C.H. as a result of their status as de facto custodians. One primary consideration with respect to this question is whether, as the trial court determined, legal custody means custody granted by court order. If it does, Grandparents point to the juvenile court’s order finding them to be de facto custodians. If not, they argue that they became lawful custodians prior to the adoption proceedings by operation of the de facto custodian statute.
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With respect to whether legal custody must be court ordered, we note that the trial court’s two references to American Jurisprudence Second (AJS) are relevant here. The trial court cited to AJS, which states that the “‘legal custodian’ of a child is one who has been given legal custody by court order.” 59 AM. JUR. 2D Parent and Child § 26 (2013). Similarly, “‘legal custody’ refers to the responsibility for making major decisions regarding the child and is a status that may be held by a parent who does not have With respect to whether legal custody must be court ordered, we note that the trial court’s two references to American Jurisprudence Second (AJS) are relevant here. The trial court cited to AJS, which states that the “‘legal custodian’ of a child is one who has been given legal custody by court order.” 59 AM. JUR. 2D Parent and Child § 26 (2013). Similarly, “‘legal custody’ refers to the responsibility for making major decisions regarding the child and is a status that may be held by a parent who does not have ‘physical custody,’ which refers to the responsibility for the physical care and immediate supervision of the child.” 59 AM. JUR. 2D Parent and Child § 26 (2013). We find the AJS’s definition of legal custody persuasive because it reflects the Indiana Code’s procedural requirements. In many provisions of Indiana Code § 31-17-2, which is the Code’s chapter concerning actions for child custody and modification of child custody orders, the statutory language implies that the court alone determines legal custody. Under Indiana Code § 31-17-2-3, “[a] child custody proceeding is commenced in the court . . . .” (emphasis added). Likewise, according to Indiana Code § 31-17-2-8, “The court shall determine custody and enter a custody order in accordance with the best interests of the child.” (emphasis added). Based on these factors, we agree with the trial court that a custodian may only obtain legal custody through a court order. [Footnote omitted.]
Next, Grandparents argue that they qualified as legal custodians, even when legal custody is defined as court-ordered custody, because the juvenile court issued an order finding them to be de facto custodians. We disagree. Pursuant to Indiana Code § 31-9-2-35.5, a de facto custodian is “a person who has been the primary caregiver for, and financial support of, a child who has resided with the person for at least: (1) six (6) months if the child is less than three (3) years of age; or (2) one (1) year if the child is at least three (3) years of age.” Under Indiana Code § 31-14-13-2.5, once the court has found “by clear and convincing evidence that the child has been cared for by a de facto custodian,” it may consider additional factors in determining custody, such as the wishes of the child’s de facto custodian. See I.C. § 31-14-13-2.5(b)(1). In other words, this section of the code merely delineates factors for determining custody, which inherently implies that qualification 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. Indiana Code § 31-14-13-2.5(e) explicitly supports this conclusion, stating that: “If the court awards custody of the child to the child’s de facto custodian, the de facto custodian is considered to have legal custody of the child under Indiana law.” I.C. § 31-14-13-2.5(e). The conditional nature of this statement expresses that unless a court awards custody to a de facto custodian, we should not consider that custodian as having legal custody of a child.
Accordingly, we conclude that even if we assume that Grandparents’ adjudication as de facto custodians was timely, they did not have legal or lawful custody of B.C.H. during the adoption proceedings because the court had only awarded them de facto custodianship status, not legal custody. As we find that Grandparents did not have lawful custody of B.C.H., we likewise conclude that the trial court did not abuse its discretion in denying their motion for relief from judgment.
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Affirmed.
MATHIAS, J., concurs in result with opinion.
BRADFORD, J., concurs.