You do not have to be a lawyer to recognize that today’s children are being raised in large numbers by third-parties, ranging from grandparents to relatives to friends and total strangers. Knowing how important stability is to a child’s sense of well-being, many third-parties mistakenly believe that they can just file in court and obtain “custody” since they are raising someone else’s children. However, the United States Supreme Court has determined that natural (and adoptive) parents have one of the oldest and most protected rights—a fundamental right—to raise their children. Thus, a third-party has a legal barrier to overcome in court to be awarded “custody”. This blog addresses the three (3) current legal tools a third party has to obtain “custody” of other children.
Guardianship.
The first tool is to file a guardianship action in the county where the child is present. A guardianship is perhaps the easiest way to obtain legal status over a child in your control. In essence, in a guardianship proceeding, a petitioner (the third party–you) have to show that the parent(s) are unavailable, absent or unfit. Thus, these proceedings may not be contested if the parent has abandoned the child. However, with unfitness, the petitioning party may have quite a showing to make. Unfitness is a very vague legal standard—although in some cases, it may be clear. A court will not enter guardianship petition just because the third party has had some care of the child and can provide a better lifestyle for the child, again because parents have a fundamental, constitutional right to raise their children. Thus, in a contested guardianship based on unfitness, careful preparation of the evidence is key.
De Facto Custodian.
Where there is an existing divorce or paternity case and a third-party has been given a child to rear, he or she may intervene in the divorce or paternity case and seek de facto custody. A de facto custodian is a person who has provided care, nurture, love and support for a child for six (6) months who is under three. This time does not have to be consecutive periods. The timeline is one (1) year for a child over three years of age. In this case, the third-party must show by clear and convincing evidence that he or she has been a de facto custodian. If this showing is met, the case moves to a second phase which is to determine if the de facto custodian should have custody in the child’s best interests. If so, then the de facto custodian may be awarded custody, again if it is in the child’s best interests. There is a significant downfall in this statutory provision in the paternity and divorce act. This is if a de facto custodian is bonded with the child, but is not awarded custody, he or she does not get parenting time—potentially thereafter having no contact.
Third-party custody.
In other cases where there is no divorce or paternity case to intervene in, a third party who has custody of a child may file a miscellaneous action against the parent or parents (if both are known). These cases allow a trial court to consider every factor that might show it is in the child’s best interests to be in the custody of a third party. However, the filing party must show much more than it is in the child’s best interests that he/she has custody. Indeed, he or she must show something akin that irreparable mental or physical harm will come to the child in the absence of a custody award. Because the court can consider literally anything, sometimes these are the hardest cases to litigate because of the breadth of evidence.
The law on third-party custody is always changing within constitutional limitations. However, as more children are raised by third parties, it should be expected that the judiciary will further develop this area of the law because of the need for stability for children and the desire to avoid making them wards of the court. If this is your case, you should consider acting before the removed parent returns and demands the child back and you have no legal action or order to protect yourself. Dixon & Moseley, P.C. advocates handle third-party custody cases throughout the state. This blog is written for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.