Child custody refers to the right a divorced parent, or other guardian, has to make any major decisions concerning their child or ward. In the event that you are seeking to obtain custody of your niece or nephew, you would be seeking third party custody rights. Third party custody is an arrangement in which a non-parent custodian, such as a grandparent, other relative, or family friend, is awarded custody of the child.

Third party custody may be awarded when the legal parents do not wish to have custody of their child, are incapable of caring for the child, or have been found to be unfit. Third party custody rights are generally only considered in emergency situations, such as when one or both parents have died, are both incapacitated or incarcerated.

Another example of a situation in which third party custody may be granted is where the biological parents both agree that there is a need for a third party to take over custody of their child. In cases such as these, the court will grant the third party custody if it is necessary or appropriate.

In cases in which one or both of the parents disagree to third party custody, the court will typically only grant it if it is detrimental to the child to live with the parent(s). This is an example of the court utilizing the Child’s Best Interests Standard in order to make a decision.

What is the Child’s Best Interests Standard, and How Does it Apply to Third Party Custody?

The Child’s Best Interests Standard is the standard used by courts to determine what sort of arrangements will be most beneficial to the child’s safety and wellbeing. As an aunt or uncle, your needs and wants are definitely considered in a child custody decision, however the court will consider what is best for the child, as the ultimate decision maker.

There are several factors considered when utilizing the Child’s Best Interests Standard to determine custody or third party custody arrangements:

  • The Age of The Child: Some jurisdictions may consider the preferences of children aged twelve to fourteen years old as an important factor for making a child custody determination, although this is not a substitute for other factors. Thus, if as an aunt or uncle, you have an established relationship with your niece(s) or nephew(s), then you may have the court consider the child’s wishes;
  • Relationships: Courts will consider established relationships with siblings, biological parents, or other family members, when making child custody determinations;
  • Biological Parents: The mental or physical health of the child’s biological parents will be heavily considered. This includes each biological parent’s commitment to maintaining ongoing and healthy relationships between the child and the other parent.
    • It is important to note that granting child custody to the child’s biological parent(s) will always be considered by courts to be in the best interests of the child. Thus, as an aunt or uncle you will have to have a strong case supported with evidence to be granted custody; and

  • Child’s Other Needs: Any special needs the child may have will be considered. Special needs may include the ability to continue providing  a stable home environment for the child, ability to maintain their extracurriculars, as well as to provide emotional and financial support.

If neither of your niece or nephew’s biological parents can meet any of the above standards, third party custody may be considered, because it would be in the child’s best interest to be in the custody of someone who does meet the above standards.

As mentioned above, although it is generally assumed that keeping the child with one or both of their own parents would be in the best interests of the child, it is important to remember that this is not always the case. In some cases, a third party can sometimes better care for the child’s safety and wellbeing.

What is the Parental Preference Rule?

The Parental Preference Rule, also known as the “parental superior rights doctrine,” refers to the rule in which a fit biological parent is granted custody over a non-biological parent. Simply put, parents have superior custody rights over any third party.

This rule is in place to protect biological parents who are fit and willing to take on the custodial position. The burden falls on the third party to prove that the biological parent is unfit and it would not be in the child’s best interest to remain in their custody.

An example of this rule is when one parent passes away. The court may be faced with the decision between the surviving parent, or the child’s grandparents (the parents of the deceased parent). Under the parental preference rule, the living, biological parent would automatically be granted custody; however, “preference” is a key term.  

Additionally, other third parties, such as an aunt or uncle, can challenge the presumption that the biological parent is the best choice for the child. As previously mentioned, the third party will need to prove to the court that the biological party is unfit to be granted custody.

This is no easy task, and the third party will need to present clear and convincing evidence that they better suit the child’s needs and best interests. So long as there is no evidence of neglect, abuse, or other examples of unfitness, it is assumed the parent is the best fit for the child.

As an Aunt or Uncle May I Have Custody Rights?

Non-parent adults that may be granted custody rights include:

  • Grandparents of the child, whether paternal or maternal;
  • Close relatives such as aunts and uncles;
  • Older siblings, as long as they are not themselves minors;
  • Stepparents; or
  • Other adults with whom the child has already been living with for some time.

Grandparents are the most common third party to petition for child custody rights. However, grandparents will generally have no legal right to custody when at least one parent is fit. Additionally, other biological relatives may be considered if they have an established connection with the child and have a history of caring for the child.

Thus, there could be a good chance of an aunt or uncle being granted custody if the child has lived with them for an extended period of time and the biological parents are found to be unfit; this is because they have essentially assumed the role of psychological parent to the child.

Should I Hire an Attorney for Help with Niece or Nephew Adoption?

As can be seen, third party child custody cases are complex and always require adherence to the Child’s Best Interests Standard. Thus, consulting with a knowledgeable and skilled child custody lawyer may be in your best interests if you are attempting to obtain child custody rights over a niece or nephew.

An experienced family law attorney can help you determine your best options for obtaining custody, build your case, as well as represent you in court for a legal guardianship proceeding, if necessary.