Child custody in family law refers to an individual’s, usually a parent’s, right to make major decisions concerning the child. This includes decisions regarding:
- Where the child will reside;
- What type of education they will obtain;
- Where they will attend school;
- What their religious practices will be; and
- Medical care decisions.
Any decision that a parent has the power to make regarding their child rests with the parent or parents who have been granted child custody rights by the courts. So long as their rights have not been terminated, biological parents whose names are on the child’s birth certificate are automatically granted these rights.
Obtaining custody of a sibling is a particularly complex area of child custody. This is because courts do not typically grant custody rights to individuals other than the child’s parents. If a child’s parents are unable to care for them, adult children or older siblings are not automatically granted custody rights over their younger siblings.
In order for a sibling to obtain custody rights, they would have to prove to a court that both of their parents are unfit or incapable in some way or that both parents are deceased. If the parents are not deceased, they will be required to state that they do not wish to have custody over the child.
Examples of unfit parenting may include:
- Instances of abuse or neglect;
- Willing failure to provide the child with basic necessities or needs;
- Abandonment of the child or children; or
- Exposing the child to emotionally harmful or psychologically damaging situations.
Unfit parenting may also include living a lifestyle that is generally not considered in the child’s best interest. A court is more likely to consider a parent to be unfit if the court also concludes that these types of conditions are likely to continue in the future without any change.
Should both parents pass away and there is no will stating who will be responsible for the child or children, a party with legitimate interests is allowed to petition the court for custody. Third parties may include:
- Siblings; and
- Family friends.
Third party custody rights are typically only granted in extreme or emergency situations. Therefore, it may be difficult to get custody of a sibling.
What is the Process for Obtaining Custody of a Sibling?
As previously noted, it is important to prove to a court that guardianship of a sibling is necessary and in the sibling’s best interests. In order to get custody of siblings, the first step is to determine if a custody appeal is necessary.
This may be accomplished by asking the child’s parents or legal guardians to relinquish legal custody of the child so that the sibling may take over as their guardian. In certain situations, the child’s parents are aware that the child would be better off in a different place and would be willing to give their child a better home.
In the majority of cases, the sibling who is requesting custody will be required to go to the court or court website in the county in which their sibling resides. They will need to file a petition to be appointed as the guardian of their sibling as well as any other required forms.
While the employees of the clerk’s office will be helpful, it is always best to have an attorney’s assistance when completing legal forms.
The individual petitioning for custody will need to know if their sibling is involved in a separate custody case and if an order regarding the custody of the sibling is already in place. If there is already an order in place, the individual may need to petition to the same court as the existing order, so that two courts do not issue inconsistent orders.
The court will determine custody of the individual’s sibling just as it does in any other custody case, using the child’s best interest standard. If the sibling claims that the child’s parents are unfit, they will be required to prove to the court that they are capable of providing for the child, which includes:
- Medical care; and
- A stable home life.
The court may order that an investigator is to interview the petitioner and their sibling as well as visit the home in which the child will be residing. If the sibling can prove that they are financially, emotionally, and mentally capable of caring for their sibling, and that being in their care would be in their sibling’s best interest, they may be awarded custody.
Additionally, the court may consider the child’s preferences regarding their custody if they are old enough to and are capable of expressing their preference. For families that have multiple minor children, the adult sibling may be required to show that having custody would preserve the family unit. This is especially true in cases where other relatives would not be able to take all of the children and they would be separated.
How Old do You Have to be to Take Custody of a Sibling?
In order to obtain custody of a sibling, the older sibling must be an adult. The age of adulthood varies by state but is typically 18 years of age. In some states, such as Alabama, the age is 19.
The sibling seeking custody must be over the age of majority. The sibling they are seeking custody of must be under the age of majority.
Do Siblings Count as Legal Guardians?
Yes, a sibling can be a legal guardian if the age requirements discussed above are satisfied and the court grants the sibling custody rights. Courts presume the child is best suited to live with a biological parent. However, an adult sibling may gain custody of a sibling in certain cases, such as:
- Both parents are deceased;
- Incapacitation of both parents;
- Addition; or
- Another reason that deems the parents unfit to raise the child.
What Else Should be Considered?
It is important to note that custody laws vary from state to state. Therefore, if the individual does not reside in the same state as their sibling, or if one or both of the sibling’s parents may contest the petition for guardianship, the custody process may be very complicated. Other circumstances that may complicate a petition include if the child is disabled or owns significant property.
The court may require the petitioner to notify their sibling’s relatives of the guardianship petition. This may cause issues in situations where the child’s parents are deceased and other relatives have been granted custody rights in a will. If the child’s parents are both deceased, the court will see if there was a written will.
If the child’s parents are alive and agree to the sibling guardianship, the court may place the child with their adult sibling if the placement is necessary and proper based on the circumstances. If at least one of the parents objects to the guardianship, the child’s best interests will prevail, including whether or not the child’s well-being would be at risk if they continued to reside with one or both parents.
Do I Need an Attorney for Sibling Custody Issues?
Yes, it is essential to have the assistance of a guardianship lawyer for any sibling custody issues you may have. As noted above, custody laws are complex and may vary by jurisdiction. An attorney will advise you regarding what laws will apply, assist you in filing your petition, and represent you during any court proceedings. If your sibling needs your help, having an attorney on your side is your best chance at success.