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 don’t usually have any custody rights over a grandchild if both parents are fit. 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.
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Types of Third Party Child Custody
Third party child custody can be granted to a non-parent who is seeking guardianship of a child. In some cases, the “third party” or relative seeking visitation or custody has been acting as a parent for an extended period of time and seeks to continue this de facto parental relationship. If the child has become very attached to the person and would suffer a significant loss if the visitation or custody arrangement were terminated, that party may seek to be recognized as a third parent, entitled to custody or visitation. In this situation, the petitioning party is not seeking custody or visitation as a third party, but recognition as a parent.
California Non-parent Child Custody
Custody is granted to those who are not the child’s parents only under certain circumstances and through specific procedures. There are two primary ways to file for custody of a child that is biologically not your own: 1) guardianship, and 2) non-parent custody.
Guardianship in Lieu of Non-parent Custody
The first method for getting non-parent custody of a child involves applying for guardianship. With “consent guardianship,” parents give written consent to non-parents to give them custody. This is the easiest way to get custody of a child that isn’t yours. In this form of custody, both parents must agree to give custody to the non-parents. Consent guardianship is not possible if one parent does not agree to give consent. If mutual consent cannot or is not granted, non-parents can file for non-parent custody.
Non-parent Third Party Child Custody Petition
The second method for getting custody is called non-parent custody, which is also called “in loco parentis” custody. “In loco parentis” means “in place of the parents” or “instead of the parents.” In this case, non-parents file with the court where the child currently or permanently resides. The non-parental filing will need to detail the cause for the petition, and will involve a formal notification to the child’s parents (if living), guardians, and various other interested parties.
To gain non-parent custody, the non-parent(s) must generally be able to show the following:
- That they have a long-standing relationship with the child, and are fully capable of substituting for the parents in caring for the child;
- That it is not only not in the child’s best interests but also not to his detriment to be with the non-custody parent; and,
- That either one of the child’s legal parents is deceased, the child’s parents are not married at the time of the filing, or the child’s parents are legally separated or are divorcing at the time of the filing.
Courts take the rights of biological parents seriously, and the non-parents filing for custody must convincingly prove that it is in the child’s best interests to be removed from the care of their biological parents to be placed with the non-parent. These stringent rules apply not only to custody battles, but also to non-parental visitation rights.
Non-parent Visitation Rights
Getting visitation rights for a child that is not your own is also very difficult. This is true even if you are the child’s grandparent. To better understand the rules here, consider the case of Troxel v. Granville, where the U.S. Supreme court made a determination regarding the visitation rights of grandparents.
In the case, an unmarried couple, mother Tommie Granville and Brad Troxel, had two daughters. When the parents’ relationship fell apart, Brad Troxel continued to take his daughters to visit his parents. Later, Brad Troxel committed suicide, but his parents wanted to continue to visit with the girls. Tommie Granville married, and her new husband adopted the girls. Tommie Granville tried to limit Brad Troxels’ parents (the grandparents) visitation rights. The grandparents filed suit under the Washington State Statute that allowed non-parental third parties to file suit to compel visitation.
The case moved through the lower courts, all the way to the U.S. Supreme Court, which found that the Washington state law should have required that those filing for visitation prove that there was some harm to the children if visitation was not allowed. While the court had six different opinions issued with its decision, the case was considered widely as a blow to the rights of non-parents applying for visitation rights of children.
As a general matter, Troxel v. Granville meant that “intact” families consisting of married parents and children had the right to make decisions regarding visitation rights of grandparents and other non-parents. To be granted visitation and/or custody, clear and convincing evidence must be presented by the non-parent proving harm to children if visitation is not allowed. The burden lies squarely with those filing the petition to prove the detriment to the child if visitation is denied.
So, this means that if you want to get non- parent custody of a child, you have to petition the family court where the child lives and show clear and convincing proof that the child should be put into your custody or that you should be granted visitation. Unless you have solid proof, in the form of witness statements and other evidence, you are very unlikely to be given custody of a non-biological child. However, if you have been raising the child and are acting as a substitute parent or you have some other reason why it would be detrimental to the child, you chances are increased.
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.
Determining Third-Party Child Custody
The same factors that apply in a traditional custody case apply when deciding in favor of a third party child custody — 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. 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.
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