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 minor or child (e.g., usually a child who is below the age of 18 in most states). A person who gains non-parent custody rights over a child will become legally responsible for making important decisions for the child, including:

  • Decisions regarding medical treatments or procedures;
  • Their education; 
  • Where the child lives;
  • Their spiritual upbringing; 
  • Their overall safety and well-being; and/or
  • Various other crucial matters.

Non-parent custody rights are rarely ever awarded to other parties since courts typically are of the belief that 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 one or more of their parents to death, incapacitation, neglect, abuse, incarceration, addiction, or some other reason that deems them to be an unfit parent. 

Thus, so long as at least one of the child’s biological or adopted parents is fit to raise them, a court will not generally award a non-parent custody of a child. Again, the non-parent adult must be able to prove that one or both of 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 custody instead.  Additionally, it may help if a 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?

The child’s best interests standard is an established set of factors that a family court will use to award child custody in divorce cases. Some factors that a court may examine when deciding which party to award child custody to include:

  • The age of the child (or children);
  • Which party the child prefers to live with if the court feels they are mature enough to decide on their own; 
  • The physical, developmental, and emotional needs of the child; 
  • Whether there is any evidence of child abuse, neglect, domestic violence, or substance abuse issues;
  • The age, mental, and physical health of the child’s parents;
  • The relationship between the child and each of the parents; and/or
  • How well each of the parents can provide for the child without the other (e.g., financially, offers a stable home environment, proximity to medical facilities, the school systems in the area, how close they live to a child’s extracurriculars or social activities, etc.). 

In weighing the above factors, the court will base its final decision on which party is best suited to care for a child and can provide for their specific needs. Also, it should be noted that while the above list contains the majority of the kinds of factors that a court will look at when determining child custody cases, these factors can often vary by state since each state has its own separate requirements and procedures when it comes to family law matters.

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 fit 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 non-parent or other third party. In other words, legal parents have superior rights to their child and child custody matters. 

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. The most common non-parents may get custody of the child are the child’s grandparents. This is especially true in cases where a grandparent has lived with the child for an extended period of time 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:

  • Close relatives (e.g., aunts and uncles);
  • Adult siblings;
  • Stepparents; 
  • Same-sex partners;
  • Live-in significant others who are not married to a biological parent;
  • Other close family members, family friends, or neighbors; and
  • Adults whom the child has formed a strong bond with and have been living with the child for a long time.

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

As previously mentioned, a non-parent party will need to prove that the child’s biological or adoptive parents are unfit to retain custody over the child, or alternatively, 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. Their 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 a non-parent wishes to prove that they are a child’s psychological or de facto parent. Some general factors that typically apply across the board include:

  • The non-parent must have lived with the child;
  • The biological or legal parent must consent to and encourage the non-parent and the child to develop a bond or relationship;
  • The non-parent and child bond must be proven;
  • The third party must perform essential parental functions for the child to a significant degree (e.g., taking them to the doctor, attending parent-teacher conferences, etc.); and 
  • Various other factors provided under state laws.

It is extremely difficult to take a child away from their parent and to strip a parent of their parental rights. However, there are certain factors that 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 of time (usually due to neglect or incarceration);
  • If they frequently engage in emotional or physical abuse of the child;
  • If they abdicate their duties and rights as a parent to the child; and/or
  • If they provide an unstable home environment due to substance abuse, unsavory friends, or have a very poor relationship with the child. 

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. So long as a parent does not abuse, neglect, or display some other quality that would make them appear unfit to raise the child, then the legal parent will most likely be able to maintain custody of the child. 

Is a 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 on the circumstances of a case. For instance, if a non-parent only applies for a temporary child custody order or a guardianship with consent, then they may only be granted temporary custody over the child.

On the other hand, if they can prove the necessary elements of a non-parental custody or In Loco Parentis 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 unable to care for them. 

If the child’s legal parents are still alive and 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?

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 further legal advice. 

An experienced child custody lawyer will be able to assess the details of your situation, can find out 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 attempt to prove that you are the child’s de facto or psychological parent.