Third Party or Non-Parent Custody Rights

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 What Are Third-Party Custody Rights, and When Are They Considered?

Non-parent custody, also known as third-party custody, is when an adult who is not a child’s parent is granted custody of a child. A person who gains non-parent custody rights over a child will become legally responsible for making important decisions for the child, including:

  • Where the child lives
  • Their education
  • Their spiritual upbringing
  • Their medical care, including treatments or procedures
  • Their overall safety and well-being

Non-parent custody rights are rarely awarded since courts typically believe it is in a child’s best interest to remain with their biological or adopted parents. However, non-parent custody rights will be awarded in extreme situations, such as when a child loses both of their parents to death or incapacitation or if the parents have been deemed unfit because of neglect, abuse, incarceration, addiction, abandonment, or other reasons.

Thus, so long as at least one of the child’s biological or adopted parents is fit to raise them, a court will not award non-parent custody of a child. To gain custody, the non-parent adult must be able to prove that the parents are unfit to raise the child, and they must demonstrate why it would be in the child’s best interest to be under their care instead. It will help if the non-parent has acted as a de facto parent to the child.

What Is the Child’s Best Interests Standard, and How Does It Apply to Third-Party Custody?

All legal decisions made concerning the well-being of children are subject to the following standard: the proposed action must be in the child’s best interests. Some factors that a court may examine when deciding which party to award child custody to include:

  • The age of the child
  • The age, mental, and physical health of the child’s parents and the person seeking custody
  • If the child is a teenager and if the judge feels that the child is mature enough to contribute to the decision-making process, the court will consider which party the child prefers to live with
  • Whether there is any evidence of child abuse, neglect, domestic violence, or substance abuse
  • The relationship between the child and each of the potential custody holders
  • How well each of the possible custody holders can provide financially for the child
  • Who can offer a stable home environment
  • Who has proximity to medical facilities and schools
  • Any other consideration raised by the facts of the case

Thus, in devising how to win third-party custody rights, a non-parental party should evaluate their circumstances and compare them with the above list. If they still believe that they can provide a better and more stable home environment for the child than their biological or adoptive parents can, then they should hire a child custody lawyer to assist them with filing a petition for third-party child custody rights.

What Is the Parental Preference Rule?

The parental preference rule is a legal doctrine that provides that custody of a minor child should normally be granted to a parent as opposed to another party. Thus, parents who are fit, willing, and able to care for the child will have a stronger case to retain custody over the child than would a third party. In other words, legal parents have preferential rights to custody of their children.

This rule is part of the reason why non-parent custody cases are so difficult to win. If a non-parent or third-party challenges a legal parent for custody of a child, they must be able to prove that the legal parent (or parents) are not fit to maintain custody of the child. If they cannot prove that the parents are unfit and that it would be in the child’s best interest to be under their care instead, then the parental preference rule will be triggered, and their petition for child custody will most likely be denied.

Which Third Parties May Have Custody Rights?

When a parent is deemed to be unfit to care for a child, there are some non-parents and third parties who may be able to petition for child custody rights. Most commonly, the potential custody holders are the grandparents. This is especially true in cases where a grandparent has lived with the child for an extended period and can prove that they are the child’s de facto or psychological parent.

Some other third parties or non-parents who may be granted child custody rights include:

  • Stepparents
  • The parent’s live-in significant other
  • Adult siblings
  • Close relatives (e.g., aunts and uncles)
  • Adults with whom the child has formed a strong bond, particularly if the child has been living with them

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

As previously mentioned, a non-parent party often needs to prove that the child’s biological or adoptive parents are unfit to retain custody of the child. etc.) It is extremely difficult to take a child away from their parent and to strip a parent of their parental rights. However, certain factors may deem a parent to be unfit to care for their child, such as:

  • If they have been separated from the child for a long period (usually due to neglect or incarceration)
  • If they engage in sexual, emotional, or physical abuse of the child
  • If they abdicate their duties and rights as a parent to the child (i.e., if they abandon the child)
  • If they provide an unstable home environment due to substance abuse, inappropriate friends, or if they have a very poor or nonexistent relationship with the child

Another method to gain custody is to prove that they are the child’s psychological parent. A psychological parent is an adult who develops a strong parental bond with a child even though they are not the child’s actual legal parent. For instance, if a child lives with their biological mother and their mother’s long-term significant other, the mother’s significant other may qualify as a psychological parent if they have bonded or acted as a de facto parent to the child over the years.

Each state has its own set of laws and criteria to use when non-parents wish to prove that they are a child’s psychological or de facto parent. Some general factors that typically apply across the board include:

  • The bond between the non-parent and the child must be proven
  • The non-parent must have lived with the child
  • The biological or legal parent must have encouraged the non-parent and the child to develop a bond or relationship
  • The third-party must be performing essential parental functions for the child to a significant degree (e.g., taking them to the doctor, attending parent-teacher conferences
  • While socioeconomic and financial factors may play a role in a divorce case between two legal parents vying for child custody, the same does not hold true in non-parent custody cases.

Is Third-Party or Non-Parent Child Custody Permanent?

Whether a third party or non-parent will gain permanent custody over a child will depend on the type of petition they filed for and the circumstances of the case. For instance, if a non-parent only applies for a temporary child custody order, they can only be granted temporary custody over the child.

On the other hand, if they can prove the necessary elements of non-parental custody in a “Loco Parentis” (“In a Parental Rolfe”) petition and the court grants their request, then they will be awarded permanent legal custody of the child.
Additionally, it is also possible for a non-parent or third-party to file for emergency custody of a child. This can happen in situations where the child is in immediate danger, has been abandoned, or something has happened to the child’s parents that makes them temporarily unable to care for them.

If the child’s legal parents are still alive and are fit to take care of the child after the emergency period is over, then the non-parent or third party must return the child to their lawful parents. This is usually the case for most emergency custody petitions.

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

Obtaining their-party custody can be quite difficult. If you are a non-parent who is attempting to gain third-party custody rights over a child, then it may be in your best interest to contact a local child custody lawyer for legal advice.

An experienced child custody lawyer will be able to assess the details of your situation, can determine whether you have a strong claim to petition for custody of the child, and can help guide you through the process to obtain third-party custody rights.

In addition, your lawyer can inform you of your rights as a non-parent under the relevant state laws, can assist you in drafting and preparing the necessary legal paperwork, and can argue your case before a judge in a way that places your claim in the best possible light.

Lastly, your lawyer can also help you gather evidence to prove that a child’s parents are unfit to maintain custody of the child, or if applicable, can help you attempt to prove that you are the child’s de facto or psychological parent.


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