In certain circumstances it may be necessary for someone other than a child’s parents to have custody of the child, often this is a grandparent and is sometimes referred to as Grandparent’s Rights. If a person other than a child’s legal parent is seeking custody, there is a rebuttable presumption that it is in the child’s best interest to award custody to a legal parent. To rebut this presumption the non-parent must show by clear and convincing evidence that awarding custody to a legal parent is not in the child’s best interest.
In order to commence an action for non-parent custody, the non-parent must first file a petition in which the child is located or permanently resides. The petition must establish the following:
- The person filing the petition stands in loco parentis to the child. “In loco parentis” means a person who has been treated as a parent by the child and who has formed a meaningful relationship with the child for a substantial period of time.
- It would be significantly detrimental to the child to remain or be placed in the custody of either of the child’s living legal parents who wish to retain or obtain custody.
- A court of competent jurisdiction has not entered or approved an order concerning the child’s custody within one year before the filing of the petition, unless there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health; and
- One of the following applies:
(a) One of the legal parents is deceased.
(b) The child’s legal parents are not married to each other at the time the petition is filed.
(c) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
Notice of the custody action must be provided to the following parties:
- The child’s parents.
- A person who has court ordered custody or visitation rights.
- The child’s guardian or guardian ad litem.
- A person or agency that has physical custody of the child or that claims to have custody or visitation rights.
- Any other person or agency that has previously appeared in a custody action involving the child.
If you are seeking assistance with custody issues for minor children, contact an experienced family law attorney