In a traditional child custody and visitation arrangement, it’s normally the biological parents of the child that are granted custody rights (i.e., the child’s mother and father).  Custody and visitation may be split between the two parents according to the determinations of the court. In some cases, the biological parents may be unable to fulfill their parental responsibilities, due to death, incapacitation, or incarceration. In such cases, a third party may be granted custody rights in order to assist in the child’s upbringing.

This type of situation is called “third party custody rights,” such as when the child’s grandparent, older sibling, or other relative seeks and is granted custody of the child. In granting custody to a third party, the court will look at the best interests of the child, as well as consider whether the parents are unfit, unwilling, or unable to provide care.

When Are Third Party Rights Considered?

Third party rights are considered, particularly in emergency situations, when one or both of the child’s parents has died, is absent, incapacitated, or incarcerated. Other situations in which the court will grant custody to a third party include the child’s need for medical treatment or to be enrolled in school, or if the parent is also a minor.  

The parents may agree that a third party have custody of their child. If this is the case, the court will grant third party custody if it is necessary or appropriate. However, if one or both parents disagree to third party custody, the court will grant it only if it is detrimental to the child to live with one or both parents, and it is in the child’s best interest to live with the third party.

Under the “parental-superior-rights doctrine” (also known as the “parental preference” doctrine), the parents of the child have superior custody rights over any third party. The burden is on the third party to prove the parent is unfit and it would not be in the child’s best interests to live with the parent. The parents will have superior custody rights if they are able and willing to care for the child. The court will generally deem irrelevant the parent’s poverty and other socioeconomic factors so long as there is no showing of unfitness, abuse, or neglect.  

Which Third Parties Have Custody Rights?

In general, the biological parents assume custody rights so long as they are deemed “fit” as well as willing and able to care for the child.  However, third party, non-parent adults can sometimes be granted custody rights as well.  Such persons may include:

  • Grandparents of the child
  • Close relatives of the parents (i.e., the child’s aunt, uncle, etc.)
  • Stepparents or partners of the child’s biological parent
  • Other adults whom the child has already been living with for some time

The court will look at whether the potential third party custodian can provide food, clothing, and a home for the child, and that he or she understands the responsibility for education and medical needs as well. During the custody hearing, the judge will listen to all the evidence in determining placement. An investigator may be assigned by the court to interview the child and may visit the home where the child will live. The potential third party custodian will need to show he or she is financially, as well as mentally and emotionally, capable of caring for the child.

What is the Child's Best Interest Standard?

In any child custody and visitation hearing, the court will employ the “child’s best interests standard”.  This means that any determinations are to be made with the child’s safety and well being in mind.  While the preferences and opinions of the adults and other parties are considered, the child’s best interest is always considered first before other factors. 

Some factors that are considered when determining a child’s best interest include:

  • Age of the child
  • Wishes of the child or reasonable preference
  • Sibling placement
  • Relationship with the parent or other members of the house
  • Special needs of the child
  • Parental use of drug or alcohol
  • Mental or physical health of the parents
  • Continuation of a stable home environment

What is the Parental Preference Rule?

This rule states that parents who are fit, willing, and able to care for their child have custody rights over adults who are not the biological parent of the child. For instance, if the mother passes away, the court may have to decide between granting custody to the biological father or the maternal grandparents. Under the parental preference rule, the biological father would obtain custody. Thus, third party persons may encounter difficulties when attempting to obtain custody of a child due to this rule. 

However, this "parental preference" rule is merely that - a preference. Although the biological parent would be favored by the parental preference rule, the third party seeking custody can challenge the presumption. The burden of proof would be on the third party to show not only that the biological parent is unfit, but that the third party obtaining custody would be in the best interests of the child. If the third party is successful, the court may change custody to the third party.

With that said, rebutting a legal presumption is not easy. The third party attempting to challenge the parental preference would need to show clear and convincing evidence of his or her claims - a high legal standard.

When Do Grandparents Have Custody Rights?

Grandparents are usually the third parties who petition to have custody of the child because they believe that the parent or parents are not the best fit for the child. Grandparents usually will have no legal right to custody of a child where at least one parent is fit. The court cannot make an award to the grandparents just because they would be better custodians for the child if the parent is also a good fit to have custody.

In addition, the grandparents do not achieve the parental rights just by playing an active role in the child’s life or by caring for the child for an extended period of time. However, if the child has lived with the grandparent for an extended period of time, the grandparent may have a good case in getting custody of the child based upon the grandparent’s role as the psychological parent of the child.

Do I Need a Lawyer for Assistance With Third Party Custody Rights?

Child custody rights can be complex and are treated very seriously by the courts due to the long-term effects that a placement will have on the child. If you are a third party considering obtaining custody of a child, find a skilled child custody attorney who can represent you in court and inform you of your options.