Non-Parent Custody Actions / by Cassandra Hearn

Non-Parent Custody Actions.jpg

Having an extended network of close family and friends is usually a good thing for children.  More family and friends means more people to love the child and provide him or her with guidance and support.  If there are problems with the ability of either the mother or father to actually parent the child, having an extended support network can also mean more people to step in and help the child through that time.  In some situations, it may be necessary for a non-parent to take the extra step of filing a custody action.

Non-parents considering filing for custody need to first understand that in any action of parent versus non-parent, the non-parent faces an uphill battle.  When a custody action is parent versus parent, the parents start off on equal footing, but this is not the case with third parties.  In those cases, the parent enjoys a significant advantage, as parental rights enjoy particular protections, including even from the United States Constitution.  The court will start from the presumption that the parent’s decision to bar or restrict access to the child is in the child’s best interest.  The third party must fight to overcome that presumption.  That said, it is not impossible for a third party to be successful in a custody action against a parent in very specific situations.

For a non-parent to be successful in seeking custody, he or she will need to prove several things.  First, that he or she has a long-standing relationship with the child.  This means that a distant cousin probably would be unsuccessful, whereas an aunt who the child has lived with for years would be in a much better position.  The third-party must then prove that it would be a detriment to the child to not be placed with that third-party.  Proving that it is a detriment to the child is a higher bar than saying it is not in the child’s best interest: the third party will need to demonstrate that the child will actually be damaged by not being with the third party.  Finally, the third party must demonstrate that 1) one of the child’s parents is deceased; 2) the parents are divorced; or 3) the parents are either legally separated or divorced at the time of filing. 

Third-party custody cases are complicated and need the help of an experienced attorney. If you have questions, contact us today.  We can talk to you about your situation and what we can do to help you.