Child custody refers to the right a divorced parent has to make any major decisions concerning their child. The court determines who is the most fit as a parent, considering a number of factors, and awards custody rights to that parent.

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.

Third party custody rights are generally considered in emergency situations, such as when one or both parents have died, are both incapacitated, or are both incarcerated. Another example of a situation in which third party custody may be granted is if the parent is also a minor.

The parents may agree that there is a need for a third party to take over custody of their child; in cases such as these, the court will grant the third party custody if it is necessary or appropriate.

In cases in which one or both of the parents disagree to third party custody, the court will typically only grant it if it is detrimental to the child to live with the parent(s). This is an example of the court utilizing the Child’s Best Interests Standard in order to make a decision.

What is the Child’s Best Interests Standard, and How Does it Apply to Third Party Custody?

The Child’s Best Interests Standard is used by courts to determine what sort of arrangements will be most beneficial to the child’s safety and wellbeing. Although the adults involved in the situation, and their needs and wants, are definitely considered, what is best for the child is the ultimate decision maker.

There are several factors considered when utilizing the Child’s Best Interests Standard to determine custody arrangements:

  • The age of the child, as some jurisdictions consider the preferences of children aged twelve to fourteen years old as an important factor (although this is not a substitute for other factors);

  • Relationships with siblings and each parent, such as the existence of and attachment level to other siblings or important family members in the home;

  • Each parent’s commitment to maintaining ongoing and healthy relationships between the child and the other parent (the parent who is willing to be more cooperative with the other parent will most likely be granted custody over the parent who speaks ill of the other to the child and routinely picks fights in front of the child);

  • The mental or physical health of each parent;

  • Any special needs the child may have, as one party may be better equipped to meet those needs than the other; and

  • Continuation of a stable home environment, as well as each parent’s ability to provide emotional and financial support.

If neither parent meets any of these standards, a third party may be considered as it would be in the child’s best interest to be in the custody of someone who does. Although it is generally assumed that keeping the child with one or both of their own parents would be in the best interests of the child, it is important to remember that this is not always the case, and a third party can sometimes better care for the child’s safety and wellbeing.

What is the Parental Preference Rule?

The Parental Preference Rule, also known as the “parental superior rights doctrine,” refers to the rule in which a fit biological parent is granted custody over a non-biological parent. These parents have superior custody rights over any third party.

This rule is in place to protect biological parents who are fit and willing to take on the custodial position. The burden falls on the third party to prove that the biological parent is unfit and it would not be in the child’s best interest to remain in their custody.

An example of this rule is when one parent passes away. The court may be faced with the decision between the surviving parent, or the child’s grandparents (the parents of the deceased parent). Under the parental preference rule, the living, biological parent would automatically be granted custody; however, “preference” is a key term.

The third party can challenge the presumption that the biological parent is the best choice for the child. As previously mentioned, the third party will need to prove to the court that the biological party is unfit to be granted custody.

This 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. 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.

Which Third Parties May Have Custody Rights?

Non-parent adults that may be granted custody rights include:

  • Grandparents of the child, whether paternal or maternal;

  • Close relatives such as aunts and uncles;

  • Older siblings, as long as they are not themselves minors;

  • Stepparents; or

  • Other adults with whom the child has already been living with for some time.

Grandparents are the most common third party to petition for child custody rights. However, grandparents will generally have no legal right to custody when at least one parent is fit. Additionally, grandparents do not achieve parental rights simply by playing an active role in the child’s life.

However, there could be a good chance of the grandparent being granted custody if the child has lived with them for an extended period of time and the remaining parent is found to be unfit; this is because they have essentially assumed the role of psychological parent to the child.

Do I Need an Attorney for Help with Third Party Custody Rights?

Child custody cases are complex and always require adherence to the Child’s Best Interests Standard. A knowledgeable and skilled child custody lawyer can help you defend yourself if your fitness as a parent is being challenged.

Alternatively, if you are a third party attempting to gain custody rights, a family law attorney can help build your case, as well as represent you in court. Either way, an experienced attorney will be able to help you determine your options.