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Do Non-Parents Have Custodial Rights Over A Child?

James W. Cushing, Esq. on 8/12/2010

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            It goes without saying that a mother and father, generally speaking, have the primary right to custody over their child(ren).  However, there may be times when a person who is not a parent may also have custodial rights over a child.  With the rate of children being born to unwed parents at an all time high, which has also coincided with the worst economic climate in generations, many a parent has taken to relying on others to assist in the rearing of his/her child(ren), more frequently than in recent memory.  This article will set forth the rights of persons who, assisting in the rearing of these children, may also have a right to the custody of the child(ren) of another in addition to, or instead of, the custody rights of the child(ren)’s parents.

             The most common person who may have a right to custody of a child is a grandparent.  Due to grandparents seeking custodial rights over their grandchildren becoming so common, the terms and guidelines by which a grandparent may have custody has been codified as 23 Pa.C.S.A. Section 5313.  Generally speaking, a grandparent may only petition for “reasonable” partial custody and/or visitation of a grandchild if the grandchild has lived with the grandparent for at least twelve (12) months.  The Court will only grant a grandparent partial custody and/or visitation of a grandchild if said custody/visitation is in the best interest of the child and will not interfere with the parents’ relationship with the (grand)child at issue.

             Aside from the above, 23 Pa.C.S.A. Section 5313 also permits a grandparent to assume primary (or, perhaps, sole) physical and legal custody of a grandchild if certain conditions are met.  Specifically, in the event that it is in the best interest of the child not to be in the custody of either parent, and also in the best interest of the child to be with his/her grandparent, a grandparent may be awarded custody if: (a) the grandparent has genuine care and concern for the child; (b) the grandparent’s relationship with the child began with the consent of a parent and/or order of court; and/or, (c) who has, for twelve (12) months, assumed the role and responsibilities of the child’s parent (or assumes the responsibility of the child’s parent pursuant to a dependency action), and/or believes the child is in substantial risk due to parental abuse, neglect, drug/alcohol abuse, and/or mental illness. 

             For the sake of completion, it should be noted that any custodial/visitation right afforded to a grandparent is also afforded to a great-grandparent.  Additionally, the custodial/visitation rights of grandparents (and great-grandparents) are terminated and/or do not apply to a child who has been adopted by a person other than a stepparent or grandparent.

            There are times when a party, who is not a parent, grandparent, or great-grandparent, may also assert custodial/visitation rights over a child; a custody action of this sort is commonly called a “third party custody action”.  The threshold issue for a third party seeking custody of a child to establish is that s/he has standing to bring the custody/visitation action in the first place.  To establish standing to bring a third-party custody action, a party must first overcome the presumption that any party, by definition, who is not a parent, grandparent, or great-grandparent, lacks standing to bring a custody/visitation action.  In order to overcome the presumption, the third-party seeking custody/visitation must prove that s/he stands in loco parentis; that is, in the place of a parent.  In order to establish that one stands in loco parentis, one must prove that s/he has essentially assumed parental status over a child and discharges parental duties for the same. 

What does it mean to assume parental status?  It means, for example, that the child lives with the third party; and/or, the child calls the third party mom/dad; and/or the third party holds him/her self out as the child’s parent; and/or the third-party performs duties usually reserved for parents.  The third party’s attempt to assume the parental role and discharge parental duties may not be in defiance of the child’s parents.  Additionally, simply being a child’s babysitter or caretaker, even if it is frequent, does not qualify one to custody.

            Once a third party establishes that s/he stands in loco parentis for a child, the third party must then prove that it is in the best interests of the child for him/her to be awarded custody of the child.  However, the burden of proof for the third party greatly exceeds that of a parent, grandparent, or great-grandparent.  A third party must prove, by clear and convincing evidence, as opposed to merely the preponderance of the evidence, that awarding him/her custody is in the best interests of the child at issue.  Additionally, the third party bears the burden of production, proof, and persuasion when seeking custody of a child.  Interestingly, the third party’s burden is not reduced if s/he is a member of the child’s family. 

Finally, a Court will act to protect the relationship of the child’s relationship over that of a third party.  Suffice it to say, though it is possible for a third party to be awarded custody of a child, it is an extremely difficult task.  Indeed, probably the best forum for a third party seeking custody of a child would be in the context of a dependency action.

            Although, generally speaking, only a child’s parents have the right to have custody of their child(ren), as noted above, there may be times when a non-parent can assert custodial rights over a child.  When it comes to the custody of a child, the best interest of the child is the ultimate determinate of who is awarded custody.  Indeed, despite all of the drama and angst often so prevalent in custody cases, it is hoped that all parties involved ultimately want what is best for the child at issue and the child will end up living with the best person for him/her.


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  • 10/20/2010 by Ramona

    Hello I am calling on behalf of my boyfriend and he and his wife (going through divorce) welcomed a kid from her niece when he was first born, it seems that the niece tried to abort that Baby and didn’t want him, well they never signed adoption papers at all and now the real mother has contacted my Boyfriend and mailed him a paper that she only had notarized that gives Him full custody.
    well his wife does not know he has this paper and she will not let him see the boy, he is 13 now, So they both raised him as parents up until now.
    my question is what can he do with this paper just to get visitation rights will it hold up in court? keep in mind neither my Boyfriend or his wife are on this boys birth Certificate.

  • 11/3/2010 by James W. Cushing

    Ramona: please call me at 215-563-7776 to discuss your situation when you are able. I think that would be a better forum to go over these issues than this one. Thanks.

  • 4/23/2012 by Allen Green

    I just got out of prison after 5 years,i have 2 kids age 5, and 7 they stay with my wife and my mother n law. after bein home for 1 year i got a 3 bedroom apt,for my family now my mother n law do,nt want my kids with me can i just take them, or what should i do?

  • 4/23/2012 by Allen Green

    I just got out of prison after 5 years,i have 2 kids age 5, and 7 they stay with my wife and my mother n law. after bein home for 1 year i got a 3 bedroom apt,for my family now my mother n law do,nt want my kids with me can i just take them, or what should i do?

  • 12/1/2011 by Anonymous

    Hi, I have a situation involving a good friend of mine, she lives in a home with abusive, who also have issues with keeping good income. They seem to have no care for their child. Another problem is she lives in another state. If she was granted visitation rights to see me. What would be the consequences if she did not herself want to return to her parents. How could I take this legally, for custodial rights for example? Any information you can give me on this?

  • 4/24/2013 by lamista hernandez

    My question Is I raised my step son egos 4 yes old for 7 mo and his father wrote up papers × notrtized for him to be in my care. I love the child as if he Were my own he lived With me in Ohio he and his father. Are from. Nc me and his fatherare no longer togather he has custody of the child the mother Is absent he Is a alcoholic and abusive do i hace any rights at all to this LITTLE Boy WHO I love so much!!! And can be With I am Lucky that his dad does ley me talk to him Any advice

  • 2/6/2015 by Anonymous

    My husband and I are the uncle and aunt of a 14yr old girl who has been living with us since August 2014. Her mother (my husbands sister) asked us to take her because she couldn’t get the water turned on in her soon to be condemned house and because she couldn’t "deal" with her daughters attitude. Her mother has mentally abused her since age 4 and is a habitual drug user along with drinking problems. Our niece, since being with us, has been doing very well emotionally and physically. Her mother refuses to financially help us with things her daughter needs, has stolen from our house, and verbally abuses the child when she thinks we cannot hear here from the other room. Recently our niece was with her mother for a few hours and stole marijuana from her mothers house. Her mother uses alcohol and drugs while her daughter is with her. Our niece has recently started having anxiety/panic attacks when she has to go with her mother and starts to go into attacks when her mother states to her she’s taking her back in two months. Our niece is scared of being alone with her mother and is fearful of living with her mother again. Our hands are tied because we know we can’t stop her from taking her daughter out of our house. Her mother is a narcisstic mother who emotionally abuses her daughter when alone or in front of us. We stop it as soon as it starts but can’t stop it when she is with her. She only sees her daughter once or twice a week and will not contact her daughter the rest of the time. Please help with any advise on what to do or say to help our niece who we love very much.
    I am a stay at home mother of two boys her age and a year older, husband works very good job, we own our home, and she has her own bedroom here. We have provided everything to her that we provided our own children. She even had her bus changed to our address.

  • 5/19/2016 by Gabino Murga

    I believe I am of third party. What right do i have when I am not blood father but i raised child for 7 years then separated from his mother. Child is 11 years and clearly wants to live with me because he does not love his mother. His blood father has not been around for four years but pays child support. Child has also said he does not want to live with him. I am in a bad situation and love my boy. i have not seen him in 2 months and the mother lied by agreeing for child live with me. i am at a great loss because i have best interest for him towards education and better future. Today the phone line was cut for our long distance relationship. i am currently mentally at edge, physically struggling to eat. i am a good Dad and feel i have failed him now that im away. she promised us and now both my boy and I are heart broken. i cant afford a lawyer because in separation she kept everything.

  • 11/8/2016 by Anonymous

    The case is where the child is 5 years old. A man who is not his biological father has been around for his first 4 years of life. The mother has since moved on and wants to start a new life with someone else. This man that is not the child’s biological parent has petitioned for visitation. The mother does not want him to have visitation because he has been abusive to her , smokes pot and cigarettes in the house when her son is there. He has also had DUI’s and she is not comfirtable with him being in the car with this man. She is also on parole until April due to this man saying she forged his signature. They just went to mediation and she was scared into giving him visitation because she was told by her lawyer that if it went to court he could gain more visitation. Is there any way she can receive financial help to change his visitation rights? I also thought he had to prove that it is in the best interest of the boy for him to be in his life?
    It does not sound like this has ever been proven. Is there any guidance I can pass onto her yo help her out?? Please email me
    Thank you

  • 7/31/2017 by Anonymous

    Hello , where to start , i guess I was the babysitter, then parent and baby moved on with me. Then parent moved out. Baby was 2 months old , now three (3) years later , parent wants her back. Well… I dont want to give her back. Although I didn’t bite her , i love her, like she my own flesh and blood . What are my options and realistically my chances?

  • 9/5/2017 by Danyell gustus

    I raised my grandaughter from birth and never left her side my husband and i souley provided for her . Mom and dad of child gave no help .Love or suport. I did it all for 8 years. My daughter moved to Az and made my grandaughter go against her will . I excepeted it and just called a few times a week so my grandaughter would no i was still in her life . She cried for me and wants to come back to me do to our loveing bond. My daughter just stoped talking to me 25 days ago and i cant talk to my grandaughter. What can i do to get her back if she wants to be with me ..Help me please ..What do i do to get my granparent rights if i stood loco parienties for 8 years.

  • 2/23/2018 by Jeff Trammell

    Recently been informed that I may be the father of a 5 year old boy. She recently went to a custody hearing and tried to explain that her ex is not the father but he has loco parent is. I want to be involved in his life if it is true but she was told she can’t discuss paternity with said child and that it don’t matter if I am the biological father. This guy has been acting as the father so he is! Is this rightfully true that I have no rights as a biological parent?

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