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Understanding Third-Party Custody in Child Custody Cases

Sept. 8, 2023

Third-party custody is when a court gives legal and physical custody of a child to someone who is not a biological parent. Since parenting is considered a fundamental right, it requires a great deal of proof ion many instances to successfully seek third party custody.

1. What is Third Party Custody?

Third party custody is when a court awards custody so someone who is not a biological parent.

This person can be a family member/relative or even an unrelated party under certain circumstances.

If someone is granted sole legal and physical custody it gives them , gives you:

• the right to get medical care, enroll the child in school, and give the child a safe, stable, and permanent home

• clear, enforceable guidelines about things like where the child is going to live and what sort of parenting time the parents may have

• security that the parent(s) can’t take the child suddenly, disrupting school, other activities, and the child's sense of stability

• the possibility of child support from the parent(s) and

• the ability to protect the child’s physical and emotional health if the parents can’t provide a stable, healthy environment for the child.

2. A Person Is Able to Petition for Third Party Custody in Two Circumstances:

The first is if they are a de facto custodian. That requires showing by clear and convincing evidence that:

• You have been the child’s primary caretaker

• The child’s parents are not involved in caring for the child and

• In the last 2 years before filing your Petition, the child lived with you without their parents present, for:

• At least 6 months if the child is less than 3 years old or

• At least 1 year if the child is 3 years old or older.

3. Second Circumstance

The second circumstance is if they are an interested third-party. This requires showing by clear and convincing evidence that they you have a significant relationship with the child and 1 of the following factors exists:

• The parent has abandoned the child, or has neglected the child's well-being to the point where it is harmful for the child to live with the parent

• The child is in physical or emotional danger, so putting the child with you takes priority over preserving the day-to-day parent-child relationship or

• Other extraordinary circumstances exist.

4. Best Interests of The Child

Along with showing that you are an interested third-party, anyone seeing third party custody must demonstrate that what they are asking is in the “best interests of the child.” It requires more than just being a better caretaker than the parent, however. You must show the parent is largely unfit.