Third Party Custody Rights

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What Are Third Party Custody Rights?

In a traditional child custody and visitation arrangement, it’s normally the biological parents of the child that are granted custody rights (i.e., the child’s mother and father).  Custody and visitation may be split between the two parents according to the determinations of the court. 

In some cases, a person other than the child’s biological mother or father may be granted custody rights.  These are known as “third party custody rights”, and may be granted under certain circumstances. There are certain situations when custody of children is granted to grandparents, close relatives or other persons that the child has been living for a long period of time. The court main interest and goal is to keep the child in a continuous and stable environment without a dramatic change.

For example, one of the biological parents is unable to fulfill their parental responsibilities, due to death, incapacitation, or incarceration.   In such cases, a third party may be granted custody rights in order to assist in the child’s upbringing.

When Are Third Party Rights Considered?

There are many states that allow non-custodial third parties to be allowed to get custody of a child if the third party is in the best interest of the child. Third party rights are considered when:

However, in some states there is a “parental rights doctrine”. Under this rule, biological parents who are willing and able to take care of the child have paramount title to the custody of the child and have the right to take custody of the child over any third party.

Which Third Parties Have Custody Rights?

In general, the biological parents assume custody rights so long as they are deemed “fit” as well as willing and able to care for the child.  However, third party, non-parent adults can sometimes be granted custody rights as well.  Such persons may include:

When considering whether a non-parent can assume custody of a child, the court may consider several factors, such as:  the child’s previous relationship to the person; the adult’s financial and occupational background; the relationship between the person and the child’s biological parents; and any instances of physical or psychological abuse.

What is the Child’s Best Interest Standard?

In any child custody and visitation hearing, the court will employ the “child’s best interests standard”.  This means that any determinations are to be made with the child’s safety and well being in mind.  While the preferences and opinions of the adults and other parties are considered, the child’s best interest is always considered first before other factors. 

Some factors that are considered when determining a child’s best interest include:

What is the Parental Preference Rule?

The “Parental Preference Rule” is somewhat similar to the child’s best interest standard.  This rule states that parents who are fit, willing, and able to care for their child have custody rights over adults who are not the biological parent of the child.  Thus, third party persons may encounter difficulties when attempting to obtain custody of a child due to this rule. 

In fact, many states have a presumption that favors placing child custody with one of the biological parents rather than a third party.  In addition, the court needs to balance the child’s best interest standard with the parental preference rule.  This can lead to dramatically different outcomes in each custody case, depending on the facts and circumstances surrounding the hearing.

When Do Grandparents Have Custody Rights?

Grandparents are usually the third parties who petition to have custody of the child because they believe that the parent or parents are not the best fit for the child. Grandparents usually will have no legal right to custody of a child where at least one parent is fit. The court cannot make an award to the grandparents just because they would be better custodians for the child if the parent is also a good fit to have custody.

In addition, the grandparents do not achieve the parental rights just by playing an active role in the child’s life or by caring for the child for an extended period of time. However, if the child has lived with the grandparent for an extended period of time, the grandparent may have a good case in getting custody of the child based upon the grandparent’s role as the psychological parent of the child.

The laws regarding when grandparents have third party rights to have custody of the child includes these examples:

Do I Need a Lawyer for Assistance With Third Party Custody Rights?

Child custody and visitation rights can be fairly complex, and are treated very seriously by the courts.  This is because any determinations have the potential to affect the child or children in the long run.  Thus, it’s in your best interests to work with an experienced family law attorney when dealing with custody issues.  Your lawyer can represent you in court and can help inform you of your options in light of the child’s best interests. 

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Last Modified: 03-31-2016 11:17 AM PDT

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