When parents file for divorce, the judge has the power to award custody of the parties' minor children in accord with the best interests of the children. Generally, fit parents who are able and willing to care for their child have the paramount right to the custody, care, and nurturing of the child rather than any third person.
Nonetheless, courts have granted custody of children to third parties, such as grandparents, close relatives, or other persons with whom the child has been living for an extended period of time. And, over the last two decades, there has been a dramatic expansion in the rights of non-parents seeking custody and visitation with children of divorce parents.
When Non-Parental Custody Rights Come into Play
A large number of states now have laws which allow for third party custody under certain circumstances. The non-parent custody issue typically arises:
- In the course of a custody proceeding when the judge has reason to believe that neither parent is a "fit" custodian for the child
- When the custodial parent has died and a third party seeks to show the surviving parent is not fit to take custody, or
- When the physical custody of the child has been residing with a third party for a long period of time.
Which Non-Parents can Seek Custody
"Standing" is a legal term that describes a party's ability, or inability, to enforce legal rights in the courts. Sometimes standing depends upon the party's interest or stake in the matter, and sometimes standing depends upon fulfilling statutory requirements. So, other than parents, who has the legal right to request or claim custody of child of divorcing parents?
Almost all states have statutes that specify who and under what circumstances a third party has standing, and the statutes vary significantly. For example:
- Some states, such as Illinois, follow the Uniform Marriage and Divorce Act and state that a third a third party can file a custody action if the child is not in the physical custody of the parents
- Other states, like Michigan, do not allow a non-parent to bring an action for custody if the parents of the child have ever been married
It is critical that a non-parent understand the laws of his or her state on the issue of standing before attempting to seek court-ordered custody.
Parental Preference Rule
The "parental right doctrine," or the "parental preference rule," is perhaps the biggest barrier for a non-party to overcome when seeking custody of a child. Under this rule, fit parents who are able and willing to care for their child have the paramount right to the custody, care, and nurturing of the child rather than any third person. In fact, in most states there is a presumption that favors placement of the child with one or both of the parents, unless the parents are found to be unfit.
Third parties and parents do not "start out even" because it is presumed that a child's parents have the right to custody, which can only be taken away for convincing reasons. In addition, because the presumption is that a minor's interest is best served by an award of custody to a parent, the burden is on the one seeking to deprive the parent of custody.
The "fitness" of a parent or parents is the primary issue in a third party's challenge to the parental preference doctrine. When deciding if a parent is fit, the court considers whether the parent can provide the required support and guidance for the child without state intervention. The court should consider the fact that the non-parent has superior ability or skills. In addition, the natural parent's poverty and other socioeconomic factors are irrelevant and will not be considered by the court, that is unless those factors are sufficient to establish neglect or unfitness.
Best Interests of the Child
Some states find that the best interests of the child may require placement with a third person even though parents have the primary right to custody. These states find that the parent's right to custody and control is not absolute and bends to the child's best interests. While the child's best interests will normally be served by placing a child in the parent's home, the right of a parent to custody cannot control if the circumstances show that a non-parent can better serve the child's interest.
In some states, the courts will use a hybrid test: the award of custody to a third party is permissible only if the presumption that a child's best interests will be served by parental custody is rebutted. Once the presumption is rebutted, the court will turn to the best-interest-of-the-child standard to resolve the custody dispute between the parent and the third person.
Typical Third Parties who Seek Custody
Grandparents are often the third parties petitioning for custody based upon the child's best interests. A grandparent usually will have no legal right to custody of a child where the parent is fit. The court cannot make an award to the grandparents just because they would be better custodians for the child.
In addition, the presumption of parental custody is not necessarily overcome by the third party's playing an active role in the child's life or by caring for the child for an extended period of time. But, if the child has lived with the grandparent for an extended period of time, the grandparent may have a strong claim to custody based upon his or her role as the psychological parent of the child.
What is the impact when a parent either voluntary gives up possession or control of a child? The law on this varies from state to state. Consider these examples:
- In states like Texas, a grandparent cannot seek custody of child unless the grandparent shows that the parent with custody had voluntarily relinquished possession of the child
- In some states, such as New York, a grandparent cannot seek custody of a grandchild if the biological parents voluntarily relinquish their parental rights and the grandchild is made available for adoption.
What if the custodial parent dies? Then the custody of the grandchild automatically goes to non-custodial parent unless he or she has been found to be unfit. Even in states that allow grandparents to seek custody when a child is not in the custody of a parent, the mere presence of the child with the grandparents at the time of the custodial parent's death does not add to the grandparents' rights.
What if a grandparent already has custody? If the child has been placed with grandparents by agreement of the parties, a natural parent who seeks to regain custody will likely need to satisfy the best-interests-of-the-child standard and show a change in circumstances sufficient for a change of custody.
In the growing number of jurisdictions that allow an award to a third party, a court may award the physical custody of a child to a stepparent if it is found to be in the child's best interest. In many instances, stepparents have been granted custody where they establish a close family or psychological connection with the child, such as where the stepparent is the only mother or father that the child has known, or where the child has become part of a family unit together with the stepparent's biological children.
Courts have been called upon to evaluate the claims of non-parent third parties in a variety of situations. Usually, the award of custody is based upon the child's best interest and a showing that the biological parent is unfit. Some examples include:
- Paternal and maternal aunts and uncles have been awarded custody in circumstances where the natural parents were abusive or where the aunt and uncle were long-time guardians of the child and the child had a strong emotional bond with that couple's natural child
- Companions of deceased natural parents, such as a live-in girlfriend, have been granted custody such as where the live-in companion cared for and provided a home for the children for several years and had essentially become a stepmother to them, and the biological mother had abandoned the children
- Former companions of living natural parents have gained custody where it was shown that the child had been sexually abused while in the care of the biological mother and she was incapable of providing her child's physical, emotional, mental, religious, and social needs
- State laws vary on whether the same-sex partners of a child's birth parent can seek sole or joint-custody, but same-sex partners have been awarded custody in circumstances where the natural mother suffered from alcoholism and a psychological disorder and her lesbian former partner established that the children's relationship with both parties would be better served if she were awarded custody
- Foster parents have been granted custody in circumstances where they had been selected by the biological mother to be the child's adoptive parents and, as primary care givers since the child's birth, had provided excellent care