Do Non-Parents Have Custodial Rights Over A Child?

James W. Cushing, Esq. on 08/12/2010

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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.