Parental Preference Rule

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What Is the ?Parental Preference Rule??

The Parental Preference Rule is applied in child custody situations. It states that custody of minor will ordinarily be granted to a fit biological parent, rather than a non-parent. Under the rule, fit parents who are both willing and able to care for their child have the first rights when it comes to the custody, care, and upbringing of their child. 

Parties seeking to challenge custody then have the burden of proof in showing that the parent is not able to care for the child. However, even then, it usually takes a strong showing that the parent is unwilling or unable to care for the child in order to overcome the parental preference rule.

The rule is also known as the “parental preference doctrine” or the “parental superior rights doctrine”.

When Is the Parental Preference Rule Used?

In most states, the parental preference rule is the general standard that is automatically applied in most child custody cases. That is, there is a basic assumption that favors placing the child with one or both of the biological parents. Again, this means that it’s up to the other party to submit their proof if they want to challenge custody.

Thus, some states allow a third-party to “rebut” the parental preference rule.  This usually involves submitting proof that the child’s best interests are better served by giving custody to a non-parent rather than the biological parent. This may be the case for example if the biological parent has abused or neglected the child in the past.

How Does the Rule Interact with the Child’s Best Interest Standard?

In child custody cases, there is also another rule that is applied, which is called the “Child’s Best Interest” standard. This principle states that any decisions regarding child custody, visitation, or support should be made with the child’s best interests in mind. That is, even if a parent prefers one decision, the court will only uphold if it they determine that it will serve the child’s best interest.

Even the parental preference rule is subject to the child’s best interest standard. That is, courts will only award custody to the parents when they see that it’s the best option for the child’s welfare and upbringing. Thus, courts will also only grant custody to a third party if they feel that this will serve the child’s best interests.  

Do I Need a Lawyer for Advice Regarding the Parental Preference Rule?

Challenging child custody can sometimes be difficult. There are number of different rules and doctrines that need to be applied, and understanding them all can be challenging. Thus, it’s to your advantage to contact an experienced family lawyer if you need assistance with child custody issues. Your lawyer can inform you of your options under law, and can provide you with representation during court hearings. 

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Last Modified: 01-07-2014 03:45 PM PST

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