Family Law

Third Parties' Rights to Custody of a Child

By Kristina Otterstrom, Attorney
Learn more about third party custody rights and what you can do if you’re fighting your relatives for custody of your own child.

Why Parents Lose Custody Rights

If you’re going through a divorce with children, you may have a lot of questions about custody. Generally, parents hold a preferred position under the law, which means a court will presume that the parent is the most fit and proper person to raise the child. Occasionally, someone can challenge this presumption by submitting evidence that the parent has neglected, abused, abandoned, or otherwise failed to care for the child. But even if a court decides that one parent is unfit, a judge will usually defer to the other parent’s rights.

In limited circumstances, both parents can lose their rights and a third party can gain custody of a child. Specifically, a non-parent can seek and potentially obtain custody of a child in the following circumstances:

  • both parents are living, but neither parent is fit to care for the child
  • the custodial parent has died, and the surviving parent is unfit or unwilling to take custody of the child
  • the child has been living with a third-party individual for a long period of time, or
  • both parents have voluntarily relinquished their rights to the child.

Child custody laws vary widely across the states. For example, in Michigan, a non-parent can't file for custody if the child’s parents were or are married. But in Arizona, Colorado, and Illinois, courts have adopted the Uniform Marriage and Divorce Act, which allows third parties to ask for custody if the child isn’t in the parents’ physical custody. It’s important to understand your state's laws if you’re a grandparent, relative, or other person seeking custody of a child who is not yours. It's a good idea to consult with a local family law attorney before you file a custody action.

Who Can Seek Custody of a Child?

In order to file a request for custody, you need to have "legal standing," which refers to the ability to demonstrate a connection to or interest in a matter. For example, a long lost cousin who has no connection or involvement with a child probably doesn’t have standing to seek custody of the child. Alternatively, a family friend who has served as the child’s primary custodian for the last 7 years likely has sufficient legal ties to file for custody.

Grandparents

Grandparents don’t usually have any custody rights over a grandchild if both parents are fit. In some states, grandparents are entitled to limited visitation rights when their own child—the child's parent—has died. But parents and grandparents are not on an equal playing field when it comes to custody. Even grandparents who share a strong bond with a grandchild as active participants in the child's life can’t necessarily overcome the parental presumption of custody, unless the child’s parents are unfit.

One exception is in cases where a child has resided with the grandparent for an extended period of time at the parents’ request. In those cases, a grandparent has assumed the psychological role of a parent and may have a strong custody claim based on that role. Once again, the rules governing grandparent rights to custody are as varied as the state legislatures that write them. In Texas, a grandparent can’t obtain custody of a grandchild unless there are serious concerns about the child’s welfare or unless the parents consent to a change in custody. And grandparents can’t file custody suits in Texas—they can only intervene in the parents’ custody case. In New York, grandparents can only petition for custody if the child’s biological parents voluntarily relinquish parental rights and make the child available for adoption.

Stepparents

With divorce rates on the rise, it's common now to see stepparents fighting for custody of their stepchildren. A growing number of states allow courts to give stepparents custody if doing so would serve a child’s best interests. Many stepparents have taken on a parental role and established a close family or psychological connection with their partner’s child. For example, in cases where a stepparent is the only mother or father a child has ever known, a court may allow a stepparent to pursue custody in the event the child’s biological parent and stepparent divorce. However, the stepparent would still have to overcome the other biological parent's claims.

Other Non-Parents

Generally speaking, in cases involving other non-parents, a parent’s rights must be terminated before a non-parent can step in and obtain custody. As in any custody case, the final decision will be based on a child’s best interests. Some situations where a non-parent might receive custody include the following:

  • Aunts and uncles. A biological aunt or uncle might obtain custody if the child’s natural parents were abusive or neglected the child, and the aunt or uncle had formed a strong emotional bond with the child.
  • Partners of deceased parents. This group may include someone such as a live-in girlfriend or boyfriend who regularly cared for and formed strong ties to the child.
  • Foster parents and adoptive parents. Foster parents have usually been vetted by the state department of child services and served as a parental figure for a period of time. The foster care process begins before a parent’s rights have been terminated. If the child’s parents lose or give up their rights, and no relative is able to step in, foster parents have the opportunity to adopt the child.

How Does a Judge Determine Third-Party Custody?

The same factors that apply in a traditional custody case apply when deciding custody in favor of a third party—a judge will try to find a scenario that supports the child’s best interests. Although a child’s best interests are usually served by keeping the child in the family home—with the biological parents—parents can lose their rights. In certain states, courts used a hybrid test: Awarding custody to a third-party is appropriate only if there’s evidence that a custody award to the parents isn’t in the child’s best interests. Once the parental presumption is rebutted, a court will turn to the "best interests of the child" standard to resolve the custody dispute between the parent and third party.

Questions for Your Attorney

  • My child’s father died, and his parents are seeking custody of my child. How can I make sure that I keep sole custody?
  • I basically raised my ex-girlfriend’s daughter since her birth. We’ve separated, but I want custody of the little girl. Do I have a chance?
  • My parental rights have been terminated, and I want my parents to raise their grandchild. Do I have any say in who gets custody of my child?

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