David, J.
For the first forty-five months of her life, B.C.H. remained in the primary care, custody, and control of her maternal grandparents T.H. and C.H. (“Grandparents”). Unmarried at the time of B.C.H.’s birth, her mother R.H. (“Mother”) would visit her daughter about once a week. Later, Mother began keeping B.C.H. at her apartment one day and night per week, and when Mother married K.J. (“Stepfather”), these visits increased to twice weekly. In November 2010, Stepfather, with Mother’s consent, filed a petition to adopt B.C.H. The Grandparents were not served with legal notice nor given an opportunity to give or withhold their consent to her adoption. B.C.H.’s adoption was granted in August 2011, and a month later Mother removed the child from the Grandparents’ home and refused to allow them any further contact with their granddaughter. Subsequently, the Grandparents filed a motion to reopen B.C.H.’s adoption and to intervene. In their motion, the Grandparents argued that under Indiana’s adoption statutes they had “lawful custody” of their granddaughter when the court granted Stepfather’s adoption petition, thus entitling them to legal notice of and the opportunity to consent to her adoption.
Indiana Code § 31-19-2.5-3 (effective 2012) requires that legal notice of an adoption petition be given to a “person whose consent to adoption is required under I.C. 31-19-9-1.” Under Ind. Code § 31-19-9-1(a) (effective 2012), “a petition to adopt a child who is less than eighteen (18) years of age may be granted only if written consent to adoption has been executed by . . . (3) [e]ach person, agency, or local office having lawful custody of the child whose adoption is being sought.” (Emphasis added.) Neither the adoption statutes nor case law defines “lawful custody” in this context. Therefore, we must interpret the term “lawful custody” and resolve whether B.C.H.’s maternal grandparents had lawful custody of her at the time the adoption petition was filed, thus requiring them to be given legal notice of the adoption petition and an opportunity to withhold consent to her adoption.
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We think the General Assembly used the term “lawful” to exclude from consideration a person who illegally absconds with a child. Once we understand what falls out of the definition of “lawful,” it is apparent that there are many sources of potential lawful custody that span the spectrum from court-ordered custody of a child to de facto custodianship to informal caretaking arrangements, to name a few.
Our interpretation of “lawful custody” within Ind. Code § 31-19-9-1(a)(3) therefore encompasses more circumstances and familial arrangements than court-ordered legal custody.7 As well it should, for the legislature likely chose to use the term “lawful custody” because it is more expansive than “legal custody.” According to our research, Ind. Code § 31-19-9-1(a)(3) is the only place in our family law statutes where the General Assembly uses the term “lawful custody” rather than “legal custody.” In addition, Ind. Code § 31-19-9-8(a)(10) (2014) provides that consent to an adoption 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.” (Emphasis added.) We presume the legislature deliberately used a different term because it intended to communicate a different meaning. See Merritt v. State, 829 N.E.2d 472, 475 (Ind. 2005) (“[W]e assume that the language in a statute was used intentionally and that every word should be given effect and meaning.”).
The General Assembly’s deliberate choice to require those with lawful custody of a child to be given notice of and an opportunity to withhold consent to the child’s adoption likely reflects its policy judgment that, in determining whether the adoption is in the child’s best interests, trial courts should hear from the party with care, custody, and control of the child in question—regardless of whether the party’s responsibility derives from a court order. Moreover, those with lawful custody of the child are exactly who trial judges want to hear from as they make one of the toughest decisions they are called upon to decide. And who better to know and speak to the child’s best interests than the person(s) functioning as the child’s parent(s). As the statute contemplates, a caregiver serving as a child’s lawful custodian needs, and deserves, to have a voice in the child’s adoption proceedings.
Additionally, the General Assembly’s conscious choice to include the term “lawful” over “legal,” and thus broaden who must be given notice of and an opportunity to consent to a child’s adoption, is likely responsive to the changing needs of our society and its increasingly diverse familial arrangements. As an example, the Grandparents cite the 2009 U.S. Census findings that 7.8 million children live with at least one grandparent, a sixty-four percent increase from 1991. (Appellant’s Br. at 21–22.) In a society where children are cared for and parented by adults without court-ordered custody rights, trial judges conducting adoption proceedings must hear from every party with a significant and substantial connection to the child(ren) in order to gain as much relevant information as possible about the child(ren)’s best interests.
As implied above, these cases are necessarily fact sensitive and must be decided on a case-by-case basis. For each particular case, courts must look to the circumstances at hand to determine if a party is in fact a lawful custodian of a child under Ind. Code § 31-19-9-1(a)(3). We now examine whether the Grandparents, B.C.H.’s primary caregivers for the first three years and nine months of her life, were her lawful custodians on the date Stepfather filed his petition for her adoption.
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Rather, we look to the circumstances surrounding their caregiving of B.C.H. to determine if the Grandparents were her lawful custodians under Ind. Code § 31-19-9-1(a)(3) when Stepfather filed the adoption petition. As stated above, T.H. and C.H. were B.C.H.’s primary caregivers for the first forty-five months of her young life, until Mother took her from their home. Day in and day out, they were the ones who housed her, financially supported her, and met her needs. More importantly, they were the only adults in her life who, on a daily basis, cared for her, nurtured her, and formed strong bonds of attachment with her. And they continued to do so even after Stepfather filed a petition to adopt her and even after the adoption petition—which they had no voice in—had been granted. Mother may have had legal custody of B.C.H. at the relevant time, but she ceded physical custody of her newborn daughter to her parents. In time, as the caretaking arrangement became permanent, the Grandparents’ physical custody of B.C.H. became lawful custody. [Footnote omitted.]
Based on these circumstances, we believe that the Grandparents were exactly the type of caregivers the General Assembly had in mind when they chose the term “lawful custody” over “legal custody” in Ind. Code § 31-19-9-1(a)(3). They were exactly who the legislature thought would be in the best position to tell a judge presiding over an adoption proceeding about the child in question and about the child’s best interests. Though only the trial court has the authority to ultimately decide whether the adoption is in the child’s best interests, lawful custodians like B.C.H.’s Grandparents have the right to present testimony to aid in the court’s often difficult decision.
But in this case, the Grandparents were given neither formal legal notice of the pending adoption nor an opportunity to voice their concerns and be heard. They will have that opportunity now. We vacate the Superior Court’s grant of the adoption petition and remand this case to the Superior Court for a hearing on B.C.H.’s best interests in the adoption. As her lawful custodians, the Grandparents must be given the opportunity to give or withhold their consent to Stepfather’s adoption of their granddaughter.
However, the Grandparents’ opportunity to withhold consent to B.C.H.’s adoption is not the same as an opportunity to veto her adoption for any reason they see fit. Should the Grandparents withhold their consent at the hearing for reasons the Superior Court finds not to be in B.C.H.’s best interests, then Ind. Code § 31-19-9-8(a)(10) enables the court to grant the adoption if it finds that doing so is in the girl’s best interests.[Footnote omitted.] Thus, Ind. Code § 31-19-9-1(a)(3) grants lawful custodians like the Grandparents the right to present testimony at an adoption hearing to aid the trial court’s decision, and to withhold consent to an adoption, but does not entitle them to override the trial court’s ultimate determination of the child(ren)’s best interests in the adoption should their failure to consent be for reasons found not to be in the best interests of the child(ren).
Conclusion
We vacate the decision of the Superior Court granting Stepfather’s petition to adopt B.C.H. and remand this case to the Superior Court for a hearing on B.C.H.’s best interests in the adoption and other proceedings consistent with this opinion. At this hearing, the Grandparents shall be given the opportunity to give or withhold consent to B.C.H.’s adoption.
Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.