Parental Preference Rule

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 What Is the "Parental Preference Rule"?

The parental preference rule is one that is applied in child custody cases. It states that there is a preference that custody of children be given to a fit biological parent over a non-biological parent.

This rule protects fit biological parents who are willing and able to care for their children and their relationship with their biological children by giving them priority of custody over anyone else. The rule is also known as the “parental preference doctrine” or the “parental superior rights doctrine.

Granting legal custody of a child to a third-party who is not their parent is known as “third party custody.” A third-party would be anyone other than a biological parent or other adult who may have played a parental role in the child’s life, e.g., a stepparent who has adopted a child. It might be a grandparent or other close relatives or family friends.

In fact, in most states, there is a presumption in law that gives preference in a custody case to the placement of the child with one or both of their biological parents unless the parents are found to be unfit. However, this preference can be rebutted by proof that the child’s best interests are better served by a different placement.

The burden of showing that an alternative placement would better serve the child’s best interests is on the person seeking the alternative placement. The right of the biological parent to custody can be taken away only for convincing reasons.

If a party challenges a custody arrangement in which a biological parent has been awarded custody, they must prove that the parent is not fit to care for the child. In this instance, there must be strong, substantial evidence showing that the parent is unwilling or unable to care for their biological child.

A person who is thinking of challenging the custody of a biological parent or parents must remember that a mere disagreement about parenting style is not enough to establish a parent’s lack of fitness to have custody of their children. Reasonable people can disagree about parenting. The non-parent must demonstrate the natural parent’s custody of their children is adverse to the child and that placing custody with the third party is in the child’s best interest.

A non-parent can also obtain custody if the biological parent voluntarily puts their signature on a binding agreement granting custody to the non-parent.

Child custody can be an issue in a divorce, of course, or when child welfare or child protective services remove a child from a home.

When Is the Parental Preference Rule Used?

The parental preference rule is present in all child custody cases but would be of special importance in cases in which a third party who is not the biological parent seeks custody. The rule directs courts to support the idea that biological parents should have custody of and care for their own children.

If a third party wishes to challenge this rule, they must prove that the child’s best interests would be better served if they had custody rather than the biological parent.

A third party will have to prove instances of abuse, neglect, and/or active drug or alcohol addiction by the biological parent or parents if they want to succeed in winning custody and taking a child from their parent or parents.

However, even if a court were to decide that one parent is not fit to have custody, the court would then look to the other parent. Only if the other parent is not available, e.g., because they are deceased or unfit, would a court look to a third party.

Each state has its own child custody laws, and the laws in different states regarding this issue are different. For example, a non-parent cannot seek custody of a child if the child’s parents are married or were married in Michigan. Arizona, Colorado, and Illinois, however, have adopted the Uniform Marriage and Divorce Act. Thus, their laws allow their parties to seek custody if the child is not in the parent’s physical custody.

For this reason, it is important for a person to consult a family law lawyer in their state who can inform them about the law in the state where any custody hearing would take place if a person is a grandparent, relative, or other person seeking custody of a child who is not theirs.

It is important to keep in mind that most states allow a non-parent to request visitation rights even if they do not have a claim for actual legal custody. Of course, a biological parent in a divorce who does not win custody is likely to have visitation rights. The grandparents and even other relatives of a parent who is deceased may also win companionship or visitation rights if a parent dies.

Again, the question the court would consider is whether it is in the child’s best interest to award companionship time to a non-parent. A court would consider such factors as the following in deciding on visitation rights for a non-parent:

  • The wishes of the natural parent;
  • The time the child and the parent have available;
  • The child’s adjustment;
  • The quality of prior interaction between parents and other relatives;
  • The child’s wishes if the child is old enough to express their wishes, and the court can interview them.

As noted above, the parental preference rule can also play a role in child welfare cases when a child is removed from the home of a parent or parents because of abuse or neglect. For example, in a reported case from Nebraska, the state removed a child from the care of her mother to protect the child’s welfare. The child’s biological father, who did not reside with the mother of the child, filed a complaint to intervene and have the child placed with him in his mother’s house where he resided.

Placement with the father was ultimately rejected by the court because the father was found to be unfit. The father was found to be unfit because he had had minimal contact with the child during the previous year, in part because when there were visits, the father argued with the child and used inappropriate language. The child expressed a wish not to live with her father.

The father’s mother was on a registry because of past child abuse and neglect on her own part. The father had been offered help in finding alternative housing but refused it. The father had also refused other services that had been recommended, e.g., family therapy. In this case, the court rejected the custody request of the biological father.

When Is Parental Preference Rule Not Followed?

Generally, a stepparent does not have the same status as a biological parent for purposes of the Parental Preference Rule unless the stepparent has adopted the child or is officially the child’s guardian. Failing adoption or legal guardian status, a stepparent does not have parental rights or obligations in a divorce or afterward.

The courts consider the stepparent to be a third party. If the biological parent is shown to be unfit and the stepparent can show exceptional circumstances, they might have an argument for custody of a stepchild.

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

The child’s best interest standard is the law in all states in custody cases. For instance, if the child’s best interest would be to stay with a grandparent, then a court might deviate from the parental preference rule and leave the child with the grandparent.

Even if the child may prefer to stay with a parent instead of the grandparent, the best interest standard requires the court to focus on the overall welfare, safety, and long-term benefits for the child. Ultimately, the court has a duty to protect the child, and it does its best to make judgments with the child’s best interest standard at the forefront.

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

If you have a child custody issue, you want to contact a local child custody lawyer. Laws vary from state to state, various rules and doctrines may come into play, and attempting to challenge a court order on your own can be very difficult. can match you with a qualified lawyer in your area who can advise you on your legal options as well as represent your best interests in court.

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