A Brief Guide to Third Party Custody

Third-party custody is where a person or persons other than the child’s biological parents are given parental rights and take over parental responsibilities. Usually, child custody and visitation rights are decided in court and, where possible, the biological parents will be granted custody rights. If the biological parents are unfit or unable to care for the child, a third party may be granted custody rights instead.

When would third party rights be considered by the court?

• If the parents are absent
• If the parents are dead
• If the parents are incapacitated (i.e., due to their mental or physical health)
• If the parents are incarcerated
• If the parent is a minor

In some cases, the biological parents agree that a third party should have custody of their child. However, both parents need to recognize this is the best decision. The parental superior rights doctrine means that if one party disagrees the court will further investigate whether it is in the best interests of the child to stay with that parent or reside with the third party. In these instances, it is up to the third party to prove that the parent is not fit to take care of the child.

Who might have third party rights?

Examples of someone who might be given third party custody rights include a grandparent or an older sibling who can provide the child with the best upbringing and care. The courts will carefully consider what is in the child’s best interests, particularly when making a decision not to grant the mother or father of the child these rights. Other persons might include:

• Close relatives of the parents
• Stepparents or partners of the child’s biological parent
• Adults whom the child has already been living with for some time such as a close family friend

What factors do the courts consider?

To grant third-party custody, the court will look at whether that party is able to provide for the child. The third-party must be able to prove that they can give the child adequate food, clothing, and shelter, as well as ensure their needs are met in terms of education and any medical or health needs too. A judge will listen to all the evidence, and an investigator may be allocated to visit the proposed home and interview the third party custodian and the child to ascertain their feelings on the matter. The court will also take into account the child’s age, their preferences, any special needs, and their relationship with their biological parents.

In third party custody cases, hiring a family lawyer can help ensure that all evidence is presented in the best way and that the client’s rights are protected. To speak to an attorney and arrange a free, confidential consultation call Attorney Regina Taylor at (704) 861-0700 today.