How to Get Non-Parent Custody of a Child

Non-parent custody is granted only under certain circumstances and through specific procedures. While the rules vary by state, generally you must follow specific court procedures and provide clear proof that the child will be harmed if non-parent custody is not granted. Depending on the state in which you reside, there are two primary ways to file for custody of a child that is biologically not your own: 1) guardianship, and 2) non-parent custody.

Applying for Guardianship in Lieu of Non-Parent Custody

The first method for getting non-parent custody of a child involves applying for guardianship.

With "consent guardianship," parents give written consent to non-parents to give them custody. This is the easiest way to get custody of a child that isn't yours, but in these cases, biological parents withhold the right to revoke consent and take custody back.In this form of custody, both parents must agree to give custody to the non-parents. Consent guardianship is not possible if one parent does not agree to give consent.

If mutual consent cannot or is not granted, non-parents can file for non-parent custody.

Non-Parent Custody Petitions

The second method for getting custody is called non-parent custody, which is also called "in loco parentis" custody. "In loco parentis" means "in place of the parents" or "instead of the parents." In this case, non-parents file with the court where the child currently or permanently resides. The non-parental filing will need to detail the cause for the petition, and will involve a formal notification to the child's parents (if living), guardians, and various other interested parties.

To gain non-parent custody, the non-parent(s) must generally be able to show the following:

  1. That they have a long-standing relationship with the child, and are fully capable of substituting for the parents in caring for the child.
  2. That it is not only not in the child's best interests but also to his detriment to be left with parents who wish to retain custody.
  3. That the court with jurisdiction in the matter has not made a custody determination within one year of the filing, with the exception of cases when the child's physical, emotional, moral, or mental health is in jeopardy.
  4. That one of the following criteria applies: a) One of the child's legal parents is deceased; or b) the child's parents are not married at the time of the filing, or c) the child's parents are legally separated or are divorcing at the time of the filing.

Courts take the rights of biological parents seriously, and the non-parents filing for custody must convincingly prove that it is in the child's best interests to be removed from the care of their biological parents to be placed with the non-parent. These stringent rules apply not only to custody battles, but also to non-parental visitation rights.

Non-Parent Visitation Rights

Getting visitation rights for a child that is not your own is also very difficult. This is true even if you are the child's grandparent. To better understand the rules here, consider the case of Troxel v. Granville, where the U.S. Supreme court made a determination regarding the visitation rights of grandparents.

In the case, an unmarried couple, mother Tommie Granville and Brad Troxel, had two daughters. When the parents' relationship fell apart, Troxel continued to take his daughters to visit his parents. Later, Brad Troxel committed suicide, but his parents wanted to continue to visit with the girls. Tommie Granville married, and her new husband adopted the girls. Tommie tried to limit the Troxels' visitation rights. The Troxels filed suit under the Washington State Statute that allowed non-parental third parties to file suit to compel visitation.

The case moved through the lower courts, all the way to the U.S. Supreme Court, which found that the Washington state law should have required that those filing for visitation prove that there was some harm to the children if visitation was not allowed. While the court had six different opinions issued with its decision, the case was considered widely as a blow to the rights of non-parents applying for visitation rights of children.

As a general matter, Troxel v. Granville meant that "intact" families consisting of married parents and children had the right to make decisions regarding visitation rights of grandparents and other non-parents. To be granted visitation and/or custody, clear and convincing evidence must be presented by the non-parent proving harm to children if visitation is not allowed. The burden lies squarely with those filing the petition to prove the detriment to the child if visitation is denied.

So, this means that if you want to get non- parent custody of a child, you have to petition the family court where the child lives and show clear and convincing proof that the child should be put into your custody or that you should be granted visitation. Unless you have solid proof, in the form of witness statements and other evidence, you are very unlikely to be given custody of a non-biological child. However, if you have been raising the child and are acting as a substitute parent or you have some other reason why it would be detrimental to the child if you weren't to be granted non-parent custody, contact a lawyer to discuss your options.