Child custody refers to the court-given right a divorced parent has to make any major decisions concerning their child. The court determines which parent is most fit, taking into consideration a number of factors, and awards custody rights to that parent. Another form of custody is third party custody.

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. Typically, third party custody rights are only granted in emergency situations, such as when the child’s parents have died, or both parents are incapacitated or incarcerated.

A third party adult will most likely have a difficult time getting custody of the child. As previously mentioned, courts will rarely grant custody rights to a non-parent third party because it is believed that the child’s parents are the best possible option for providing guidance, safety, and stability.

Further, it is assumed that the biological parents have the most attachments to the child. There are specific conditions to be met when attempting to strip parents of their custody rights. A third party will need to show that they are psychologically the child’s parent, or that both of the biological parents are unfit. All claims to custody must be proven to be in the child’s best interest.

Which Non-Parents Might have a Custody Claim?

The most common group of third party non-parents who wish to claim child custody is the child’s grandparents. It is important to remember that grandparents do not have any inherent visitation or custody rights. Generally, grandparents do not have any legal right to custody when at least one parent is fit. Grandparents do not achieve parental rights simply because they play an active role in the child’s life.

However, there is a better chance of the grandparents receiving custody rights if the child has lived with them for an extended period of time, combined with the remaining parent being found to be unfit. At this point they have essentially assumed the psychological role of the child’s parent, which is a requirement when claiming custody as a third party.

Other non-parents who may be granted custody rights include:

  • Close relatives such as aunts and uncles;
  • Older siblings who are not minors themselves;
  • Stepparents;
  • Same sex partners; or
  • Other adults with whom the child has already been living with for some time.

How Can a Non-Parent Prove Psychological Parentage, and How Might a Parent be Proven to be Unfit?

As previously mentioned, a non-parent, third party will need to prove that they are the child’s psychological parent, or that the biological parents are unfit to retain child custody. Each state has their own set of regulations and criteria when proving psychological parentage.

Generally, the standards are:

  • The biological or legal parent must consent to and encourage (foster) the relationship between the third party and the child;
  • The third party must have lived with the child;
  • The third party must perform essential parental functions for the child, such as making healthcare decisions, taking the child to extracurricular activities, attending parent teacher meetings, etc. These functions must be performed to a significant degree;
  • A parent-child bond must be forged and proven; and
  • The non-parent may not be a neighbor, caretaker, babysitter, nanny, etc.

In order for a parent to be considered unfit, there must be extraordinary negative circumstances. These factors could include:

  • Prolonged separation from the child;
  • Emotional or physical abuse;
  • Abandonment of parental rights and duties;
  • Sibling separation;
  • Poor relationship with the child;

Proving that a parent is unfit 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 than the child’s own parent(s).

Something that the courts do not consider relevant to a parent’s ability to care for the child is the parent’s poverty or socioeconomic factors. 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.

Do I Need an Attorney for Help with Non-Parent Child Custody Issues?

If you are a non-parent attempting to gain custody of a child, it is in your best interests to consult with a skilled and knowledgeable child custody attorney.

They will be able to assist you at all stages of your case, including filing all of the proper legal paperwork and presenting your case in the best possible light. A child custody attorney can help you prove that you are either the child’s psychological parent, or that the child’s parents are unfit to maintain custody.